I cannot assent to the opinion, that a demand of the maker was necessary in this case. By his endorsement, the defendant contracted that if the note was duly demanded of the maker and not paid, or if after the exercise of due diligence no such demand could be made, he would on receiving due notice pay the amount to the endorser or holder. (14 John. 117.) The question is whether due diligence required that a demand should be made of the maker, under the circumstances disclosed by the evidence.
In Anderson v. Drake, (14 John. 114,) it was held that where the note is not payable at a particular place, and the maker has a known and permanent residence within the state, the holder is bound to make demand at such residence. The rule applies where there has been a change of residence by the drawer subsequent to the making the note, as well as to other cases. InMcGruder v. Bank of Washington, (9 Wheat. 601,) it was decided that where the maker of a note had removed into another state subsequent to the making, no demand was necessary. So also in Anderson v. Drake, (supra, 117,) and in Taylor v.Snyder, (3 Denio, 146.) Justice Beardsley, in delivering the opinion of the court, after a very able review of all the cases, came to the conclusion that demand and notice must be given where the drawer of the note at the time of the making *Page 329 and when it fell due, had a known residence in one of theUnited States — the payee residing and the note being given in this state.
The question is now presented in a new form, whether the payee, in the exercise of due diligence, is required to follow the maker to a foreign country in order to make a demand.
If the legal effect of the contract of the endorser is as stated by the learned judge in Snyder v. Taylor, namely, that it requires a demand except in those cases where it "shall be found impracticable," the plaintiff was not excused in this instance, since it was possible to have demanded payment of the maker when the note matured. But I apprehend that this is stating the condition of the endorser's liability a little too broadly. In McGruder v. Bank of Washington, it was neither impossible or inconvenient to have demanded payment, as the maker lived, after his removal from the district of Columbia to the state of Maryland, only nine miles from the holder. The court determined, as matter of law, that due diligence did not require a demand under such circumstances. They say, "on this point there is no other rule that can be laid down which will not leave too much latitude as to place and distance." The rule was adopted as a rule of convenience, and not on account of its abstract justice. The reasoning of the court is applicable to the case before us. In the absence of direct authority, we are called upon not to make a new exception to the general rule, but to apply that rule to a new class of cases. Expediency, public convenience, it seems to me, require that the necessity of a personal demand should be confined to cases where the maker resides within the states or territories of the Union. It is difficult to prescribe any other rule which will not leave "too much latitude as to place and distance," and of course be fluctuating when it should be certain. Instances will readily occur to every one, in which the making of a demand in a foreign country would be attended with little inconvenience, and others in which it would be impracticable. Between these extremes there is a wide interval which would be opened to litigation, which sound policy requires to be closed. The case of Hepburn v. Toledano, (10 Martin'sR. 643,) and the remarks of Judge *Page 330 Story in his treatise, are opposed to the extension of the privilege of an endorser further than they have been carried inSnyder v. Taylor, even if the criticism of Judge Beardsley upon that case is in all respects correct. Looking then to the nature of the instrument in question, as essentially domestic in its origin and uses; to public convenience, which demands certainty in the general rule, rather than strict equity in special cases; and to the extent of the country under the government of the United States, I have come to the conclusion that no demand was necessary in this case in order to charge the endorser.
Judgment affirmed.