Union Insurance v. Succession of Rodd

Ludeling, C. J. This is a suit against the succession of an indorser on a promissory note. The defense is want of demand of payment of the maker, and due service of notice of protest on the legal representatives of the deceased. At the maturity of the note, it was protested without presentation for payment, or demand on any one for payment, and it is not proved that it was impossible to make a demand-of payment. This was necessary to bind the indorser. In Toby v. Maurian this court said: “It is clear that no recourse can be had against an indorser on a note, until a demand has been made on the maker, if living, or on his heir or legal representative after his death, unless the impossibility of making such a demand is made apparent. * * The authorities on this point, and which support the position here laid down, are numerous, of the highest character and authority, and conclusive on the subject. Chitty, on Bills. 317; Bayley on Bills, 128; 3 Peters, 89; 7 id. 287 ; 7 Mart. 364; 1 Pardessus, 392 ■, Pothier Contrat de Change, No. 146.” It is therefore ordered and adjudged that the judgment of the lower court be annulled, and that there be judgment against the plaintiff, dismissing this demand as in case of nonsuit, with costs.