Blake v. McMillen

Dillon, J.

1. Bills and notes negotiable : presentmentto joint makers. -This judgment must be reversed. The defendant was sued as an ordinary indorser, and sought to be charged as such. His contract as . ^ .at indorser, was that lie would pay, if the ' x *J makers of the note should upon due demand A refuse to pay, and he should he duly notified of the dishonor. His contract was not that he would thus pay if demand should be made of part of the makers only. If it be admitted, as was claimed by plaintiff, that the death of one of the makers would excuse demand upon his personal representative, surely the plaintiff should have established such death by evidence, plaintiff’s allegation in this behalf having been put in issue by the answer. See 1 Parson’s N. & B., 363, 364, 445.

The note was not signed by the makers as partners, nor was any copartnership relation between them shown. Nor did it appear that they resided at different and distant parts of the State, so as to render it impossible to make demand on both on the same day.

*360 As tbe case stood, plaintiff’s failure to present the note to both makers was wholly unexcused. It is, therefore, unnecessary to consider what facts will dispense with the necessity of a presentment to both. We cannot affirm the judgment without holding that a presentment to one only of the makers of a joint note, will charge an indorsee though the failure to present to the others is wholly unexcused. Such is not the law-merchant, according to the best considered view of this subject. 1 Parsons N. & B., 362, 363 and notes. And our statute adopts the law-merchant. Kev., §§ 1794, 1813.

The law, in this respect, is not changed by certain other provisions of the statute, ignoring, for many purposes, the technical distinctions of the common law, between joint, and joint and several liabilities. Bev. §§ 2764, 2841.

The judgment below is reversed, and the cause remanded.

Peversed.