Reid v. Morrison ( 1841 )

The opinion of the Court was delivered by

Sergeant, J.

The principal question arising on the charge of the court below is, whether there existed circumstances to excuse the want of a demand on Geoghegan, the maker of the promissory note and the drawer of the inland bill of exchange. The rule of law on this subject seems to be, that if the drawee has merely removed from his usual place of residence to another in the same state or kingdom, it is incumbent on the holder to make every reasonable endeavour to find out whither he has removed, and, in case he succeed in such attempt, to present the note or bill for payment at that place. But if the drawee or maker has absconded, that circumstance will dispense with the necessity of making any further inquiry after him. Chitt. on Bills 261; Bayl. 95; Duncan v. M’Cullough, (4 Serg. & Rawle 480). The same rule which exists in the case of absconding applies to that of the removal of the maker or drawee into another jurisdiction after the execution of the instrument. In M’Gruder v. Bank of Washington, (9 Wheat. 661), the maker of the note removed from the District of Columbia to the State of Maryland, to a place within about nine miles of the District; there was nothing to sanction its being construed into an act of absconding, and the court say that from his absconding or removal out of the Kingdom, the endorser is held in England to stand committed; and here, a removal from the seaboard to the frontier, or vice versa, would be attended with all the hardships to a holder, especially one of the same state with the maker, that could result from crossing the British Channel. See also Galpin v. Hard, (3 M’Cord 398). In the case before us, all the parties lived in Ireland when the instruments were executed. It was also proved that Geoghegan, the maker of the note and drawee of the bill, left his place of residence in Ireland for America before they fell due, in company with the defendant, the endorser; and there is no evidence of Geoghegan’s having been heard of since. It was, therefore, impossible to make a presentment to him in Ireland, and it would seem the holder was not bound to search for him in a foreign country, but his removal dispensed with any further effort, and made the endorser ipso facto liable without it.

It is also contended, on behalf of the defendant, that the holder knew, within a year or more, that the defendant, the endorser, was in Philadelphia, and gave him no notice. The evidence, however, is positive that the defendant absconded to a foreign country before the maturity of the bill, and that would dispense with the necessity of notice, on the principles before stated, were it otherwise requisite. Besides, it appears that the defendant was the principal debtor, and Geoghegan lent his name for the use and accommodation of the defendant, the drawer and endorser of the bill and endorser of the note; in which case he is considered as a drawer without funds in the hands of the acceptor and not entitled to notice. 4 Cranch 141; Agan v. M’Manus, (11 Johns. R. 180).

As to the third count, the right to recover on the count for goods sold and delivered, depends on the same principles. If the plaintiff was not guilty of laches, he may recover on the instruments or on the third count, if the evidence sustains his cause of action.

Judgment reversed, and venire facias de novo awarded.