#### Zephaniah Shaw *versus*Luke Reed.

On a promissory note payable at a particular house, an actual or virtual demand must be made at such house, and notice of non-payment there must be given to the indorser, in order to charge him ; and notwithstanding the maker's insolvency and absence from the commonwealth, unless the note is at such house on the day when it becomes due, in the hands of some one authorized to receive payment, no demand, actual or virtual, can be made.

Assumpsit against the indorser of a promissory note, dated March 23, 1830, payable at the Plymouth Bank, in fifty-seven days and grace, and discounted by the bank. On the 18th of May, 1830, the note was taken up at the bank by the plaintiff, who had indorsed it subsequently to the defendant, and it was never returned to the bank. It was testified that the maker lived in Middleborough, in the county of Plymouth ; that he went away in the winter or spring of 1830 ; that when he went away it was expected that he would return, but before the month of May he had been heard from, and it was then understood that he was not coming back ; that he sent for his family, who left Middleborough in April and went to join him in Vermont; that he was destitute and embarrassed, though he held much real estate, and that his property was attached before the 18th of May and he was considered insolvent. One witness had notice when the maker was going away, and that he wras going to Vermont.

Coffin, for the plaintiff,

cited *De Berdt*v. *Atkinson,*2 H. Bl. 336; *Crossen*v. Hutchinson, 9 Mass. R. 205; Bayl. on Bills, (Phil, and Sewall’s edit.) 126; *Widgery*v. Munroe, 6 Mass. R. 450; *City Bank*v. Cutter, 3 Pick. 419; *Putnam*v. Sullivan, 4 Mass. R. 46; *Hale*v. Burr, 12 Mass. R. 88; 3 Kent’s Com. 65.

Oct. *28th*

Chapin, for the defendant,

cited *Woodbridge*v. Brigham, 13 Mass. R. 558 ; *Sanford*v. *Hillaway,*10 Mass. R. 54.

The Court said, that in some cases a demand on the maker is excused, as where he absconds and it so becomes impossible to make a demand, but that where the note is payable at a time and place certain, that principle does not apply ; that an actual or virtual demand must be made at that place, and notice of non-payment there must be given to the indorsei, m *137order to charge him; and therefore the holder must have the note at that place, himself, or deposit it there with some one authorized to receive payment, and without this, no demand, actual or virtual, can be made ; and it was resolved, on the authority of *Berkshire Bank*v. *Jones,*6 Mass. R. 524, and *Woodbridge*v. *Brigham,*13 Mass. R. 556, that as the note in suit was not at the Plymouth Bank on the day on which it became due, no legal demand was made, and therefore the defendant was discharged from liability as indorser.1

*Plaintiff nonsuit.*

1

 See *Sullivan*v. *Mitchell,*1 Caro. Law Rep. 482; *Gillert*v. *Dennis,*3 Metc. 499; *Groton*v. *Dallheim,*6 Greenl. 476; *Course*v. *Shackleford,*2 Nott & McCord, *283; Buck*v. *Cotton,*2 Connect. R. 126; *Stothart*v. *Parker,*1 Overton, 260; *Walton*v. *Watson,*13 Martin, 347; *Barton*v. *Baker,*1 Serg. & R. 334; *Gibbs*v. *Cannon,*9 Serg. & R. 201; *North Bank*v. *Abbot,*13 Pick. 465