The case of Hall v. Newcomb, (3 Hill, 233,) and same case in error, (7 id. 416,) has settled the question with respect to the effect to be given to such an endorsement as was made by Gilmore upon the note in question. In the absence of clear and direct evidence of an intention to become a joint debtor, or guarantor of the note, the party here, by putting his name upon it, (the note being drawn as a negotiable note,) can be regarded only in the light of an endorser, and as assuming no other responsibility than that which an endorsement of a negotiable note imports. In this case there is no evidence to show that Gilmore intended to become bound in any other capacity, or that the creditor, Mr. Spies, expected any thing more of him.
Such being the case, the next question is, whether Mr. Spies could, under the circumstances, dispense with a demand or presentment for payment when the note fell due, and with due *164.notice of non-payment to the endorser, and still hold the endorser ?
The note was made and endorsed in the city of New-York, where it bears date. It was drawn payable six months after date, but no place of payment is designated in the note. Gilmore endorsed it for the accommodation of Furlong, the maker. Both maker and endorser were, at the time, in the city of New-York, though they were residents of Matamoras, in Mexico ; and the fact that they resided at Matamoras, and were doing business them, at the time of giving the note, and at the time it fell due, was well known to Mr. Spies. Yet he took no steps to have the note presented for payment at Matamoras, when it became payable, but kept it in his own possession in the city of New-York. He however gave notice, by letters written immediately after the maturity of the note, to both Furlong and Gilmore, that the note was due and was not paid; -which letters were transmitted by the first vessel that could be found going from New-York to Matamoras, and which left New-York about a week after such letters were written.
This was not such a demand and notice of non-payment as the law requires, to charge the endorser. The note, although madé and dated in New-York, was not by its terms payable there. The creditor did not ask for such a stipulation in the note, and .the circumstance that the maker resided in a foreign country is no excuse for not following him with the note, so far as the endorser is concerned; unless the payee or holder protects himself from the necessity of doing so, by specifying some other place of payment, in the body of the note. No case has been shown, either in England or this country, in which the law has been held otherwise. On the contrary, the law as laid down in the case recently reported of Taylor v. Snyder, (3 Denio, 145,) we think shows very correctly and conclusively, that under circumstances like the present, it was the duty of Mr. Spies to present the note for payment at the known place of residence of the maker, though in a foreign country, if he meant to hold the endorser. We think, therefore, that the superior court erred, and that their judgment must be reversed.