Gallagher v. Roberts , 11 Me. 489 ( 1834 )

Mellen C. J.

The only question reserved is, whether the demand on Bartlett, the maker of the note, was a legal and sufficient one. It was made at the proper time, and unless it was necessary that the cashier who made it, in the manner mentioned in the report, shauld have had the note in his possession at the time, there can be no defence. In the case of Freeman & al. v. Boynton, 7 Mass, 483, it was1 decided that a demand made on the maker of the note in Wiscasset by an agent of the plaintiffs then living in Boston and having the note there in their possession, while Merrill, the agent, at the distance of one hundred and sixty miles from Boston, had only a copy of the note when he made the demand, was insufficient. No one doubts the correctness of that decision. But in giving the opinion of the court, Parker J. says, “ This rule may admit of exceptions; as where from the usual course of business, of which the parties are conu-sant, the security may be lodged in some bank, whose officers shall demand payment and give notice to the indorser, according to the custom of such banks, the security not being presented at the time of the demand, but the parties being presumed to know where it may be found.” The form of the notice and demand left with Bartlett, was information where the note was* — He knew it was discounted at the bank — and he and the indorser both lived in Bangor. This case is precisely such a one as the Court, in Boynton’s case, observed would constitute an exception from the rule they then established. We are all of opinion that there must be

Judgment on the default*