Samuel D. Colt el al. versus Parker Barnard, 18 Pick. 260

Shaw C. J. delivered the opinion of the Court. It is now conceded, that this note was indorsed by the defendant to the plaintiff, some time after it became due, and the question is, whether the action can be maintained against the indorser, without a demand on the promisor and notice of non-payment to the indorser. The Court are of opinion, that the action cannot be maintained, without such demand and notice.

If the indorser is liable at all, on such indorsement, it is in virtue of the law merchant, which creates a conditional liability to pay, if the maker on presentment shall neglect or refuse to pay, and seasonable notice of such dishonor is given to the indorser. It is very clear, that a promissory note is negotiable after it falls due, as well as before. Each indorsement is in the nature of a new draft, by which the holder orders the maker to pay the contents to the indorsee.

It is an implied stipulation with the indorsee, that the money is still due and payable, that the indorser is entitled to so much money, in the hands of the maker, and if the indorsee will call upon the maker he shall receive it. It is like drawing a bill at sight, on which a drawer or indorser cannot be holden without' presentment and notice of non-payment. All the reasons, which require a demand and notice, in any case, to charge the indorser, apply to this. There is the same reason for prompt notice, namely, that the indorser may take measures to secuie pay ment, if the note is dishonored on presentment.

This precise point, though not decided in this State, has been so decided in other States, by very respectable courts, and upon satisfactory reasons, from analogous cases. Course v. Shackleford, 2 Nott & M‘Cord, 283; Poole v. Tolleson, 1 M‘Cord, 199; Berry v. Robinson, 9 Johns. R. 121; M'Kinney v. Crawford, 8 Serg. & R. 358; Bishop v. Dexter, 2 Connect. R. 419. If it be asked, at what time payment of the note shall be demanded, the day originally named for payment having passed, the answer is obvious. As between maker and promisee, a note is payable on demand, at any time after it becomes due.

When it is indorsed after due, it is in legal effect a note on demand, and is to be so understood by the parties, as if written “on demand.”, In that case, the law is well settled, the demand must be made within reasonable time, and if not paid, immediate notice of nonpayment must be given to the indorser. Field v. Nickerson, 13 Mass. R. 131. No notice having been given to the indorser in the present case, although the note was indorsed after it became due, the action cannot be maintained.