The case of Hall v. Newcomb, (7 Hill, 416,) is in point to show that Gilmore cannot be made liable to Spies, asguarantor or maker of the note. The material question *Page 326 then is, Was there proof given on the trial, sufficient to charge him as endorser? The evidence showed that both the maker and endorser at the time of making and endorsing the note, as well as at the time of its maturity, were residents of and doing business at Matamoras in Mexico, and that these facts were known to Spies, who at the same time resided in New-York, where the note was drawn, dated and endorsed. There was no evidence given to show either a demand of payment of the maker, at maturity, and notice of non-payment to the endorser, or of any facts constituting an excuse for omitting to make such demand, or any efforts to make it and give such notice, other than to show the residence of the maker and endorser to have been in Mexico, a foreign country. It is insisted in behalf of the plaintiff, that upon that ground the law excuses any demand and notice. The general rule of law is, that when a promissory note is not made payable at any particular place, in order to charge the endorser, payment must be demanded of the maker personally, or at his dwelling house, or other place of abode, or at his counting house or place of business. The note in question is not made payable at any particular place. There are, however, exceptions to this general rule, by which any demand is dispensed with. It is a question of diligence, and if a demand is found to be impracticable, proper efforts for that purpose having been made, the endorser will still be held liable, due notice having been given to him by the holder. These exceptions are enumerated in the opinion of the court delivered by Mr. Justice Beardsley in Taylor v. Snyder, (3 Denio, 151,) and embrace cases under the following circumstances: 1. When the maker has absconded, that will ordinarily excuse a demand; and notice of the fact is sufficient to hold the endorser. 2. When the maker is a seaman on a voyage, having no domicil in the state, the endorser is liable without a demand being made; but if he has a domicil in this state, although he be absent on a voyage, payment must be demanded there. 3. Where the maker has no known residence or place at which the note can be presented for payment. 4. Where a note is made by a resident of the state, who, before it is payable, removes from the *Page 327 state and takes up a permanent residence elsewhere, the holder need not follow him to make demand, but it is sufficient to present the note for payment at the former place of residence of the maker.
These exceptions to the general rule, as Judge Beardsley remarked, it will be seen, all rest on peculiar reasons. In the first, the maker has absconded; in the second, he is temporarily absent, and has no domicil or place of business within the state; in the third, his residence, if any he has, cannot be ascertained; while in the fourth, he has removed out of the state and taken up his residence in another country. In each of these instances, let it be observed, the fact constituting the excuse, occurs subsequently to the making and endorsement of the note; and it is this new and changed condition of the maker, and thatonly, by which the endorser stands committed, without a regular demand. And this is just: for it is but reasonable to suppose that neither party, when the note was given, looked for this new and changed condition of the maker, and that each contracted upon the supposition that no such change would take place.
It is obvious that the case at bar is not within either exception to the general rule dispensing with a demand and notice. No change in the condition of either party has taken place since the note was made and endorsed. The maker and endorser, I repeat, respectively had a residence in Mexico at the time the note was made in New-York, which remained unchanged at the maturity of the note, and which was known to the plaintiff at each period of time. If the exception now insisted upon is made, it must rest upon some principle not hitherto recognized by any rule of law, as I think is abundantly shown by the opinion in the case to which I have referred.
I cannot assent to the truth of the position assumed, that because the maker and endorser of a promissory note at the time of the making and endorsing reside in another state or foreign country, the endorser may be held liable without any demand being made on the maker; especially when such residence was known to the holder at the time the note was made and has *Page 328 not been changed before the maturity of it. And in this there is no injustice: for it is but reasonable to conclude that each party contracted upon the supposition that the holder should make a demand of payment on the maker at maturity, at the place of his residence, and if not paid give notice to the endorser, or else aplace as well as time of payment would be stipulated for in the note itself. To hold that a demand and notice can be dispensed with on the ground that the maker and endorser resided in a foreign country at the time of the making and maturity of the note, would, in my judgment, be nothing short of judicially changing the terms and legal effect of the contract between these parties. I think the judgment of the supreme court should be affirmed.