whom he could make a demand. It was objected, that the tes timony did not prove a demand, nor a sufficient excuse for it. The court considered, that what was done was sufficient, if the witness could state that he went to the place of business of the makers, in business hours, but unless he could state this fact, the demand was not excused, and the indorser was not liable. In Crosse v. Smith et al., 1 Mau. & Sel. 545, an effort was made to give notice to the drawers of the non-payment of a bill of exchange, by sending it to their counting-house during hours of business, on two successive days, knocking there, and making sufficient noise to be heard by persons within, and waiting there several minutes-the inner door being locked. This was considered sufficient, without leaving a written notice, or sending it by the post.

And in Goldsmith et al. v. Bland et al., Bailey on Bills, 127, or late ed. 224, note 1, with the view of charging the defendants as the indorsers of two foreign bills, and to prove notice, it was shown by the plaintiffs, that they sent a clerk to the defendant's counting-house, between four and five o'clock in the eveningnobody was in the clerk saw a servant-girl, who said no one was there, and he returned, having left no message with her. Lord Eldon, who presided on the circuit, told the jury, that if they thought the defendant ought to have had somebody in the counting-house at the time, he was of opinion that the plaintiffs had done all that was necessary, by sending their clerk-that the notice was in law sufficient, if the time was regular, etc. The learned lord doubtless intended to refer to them the question of fact, whether the call was made at the defendant's counting-house, within business hours, and nothing more; for this fact being found affirmatively, the law determined the sufficiency of the excuse to give notice. Goldsmith et al. v. Bland et al., says Mr. Justice Washington, 2 Pet. 101,' decides "that it was sufficient to send a verbal notice to the defendant's countinghouse, and if no person be there in the ordinary hours of business to receive it, it is not necessary to leave or send a written one." "The principle of this decision is," says that learned judge, "that the counting-house of the defendant, is the place in which the holder was entitled, during the regular hours of business, to look for the person for whom the notice was intended, or for some one authorized by him to receive it." See further, Bowes v. Howe, 5 Taunt. 30; 4 T. R. 456;' 1 Bos. & Pul. 394.3 This, we think, authority ample to show that a drawer or in

1. Williams v. Bank of United States.

2. 5 Taunt. 30.

3. Miscited.

dorser of a bill or note, may be sought within the regular time after the dishonor of either, at their places of business, for the purpose of giving them a notice, and if absent during the hours of business, without leaving any one to attend to their interest, the holder will be excused from giving notice. In the case before us, it does not appear that either of the visits to the room in which the plaintiffs carried on business, was made within business hours, and as the excuse for omitting to give notice was incomplete, without proof of that additional fact, the judge of the county court, in not thus qualifying his instructions to the jury on this point, mistook the law.

2. If an indorser has used the precaution to obtain an assignment of all the effects of the drawer or maker, to be applied to the payment of the paper indorsed, he can not claim an exemption from liability, because he has not had regular notice of the dishonor of the bill or note. The reason why he is entitled to notice is, that he may take the necessary measures to obtain payment from the parties liable to him, and if notice be not given, it is a presumption of law, that he is prejudiced by the omission; but if the indorser has already obtained a transfer of the entire estate of the drawer or maker, he would have nothing to gain by a notice, and consequently could not be injured by the want of it. So, if the indorser has protected himself from loss, by taking collateral security sufficient to cover his indorsement, he has impliedly waived his legal right to require proof of demand and notice. We do not undertake to determine, that this latter proposition is universally true: be this as it may, it will be time enough to inquire whether it has its exceptions, when a proper case shall arise.

As the effect of an assignment of property, or a collateral security, upon the general rights of an indorser, is for the first time brought before this court, it may not be out of place to inquire how the question stands upon authority. Corney v. Da Costa, 1 Esp. 302, is the earliest case that has fallen under our notice. In that case, it appears that the defendant was sued as the indorser of a promissory note. To secure him against the maker's default, he had taken of their effects, an amount equal in value to the note. Mr. Justice Buller said it was undoubtedly true, that an indorser should have notice of the dishonor of a note, but that was not the case, where he could not suffer from the want of it. The maker had waived his right to insist upon a notice, and was liable at all events. In Brown v. Maffey, 15 East, 222, Mr. Justice Bayley cites Corney v. Da Costa, and

says it was decided upon the ground, that it "would have been a fraud on the indorser, to call upon the maker, because, before it became due, the maker had deposited effects in his hands, to answer the amount of his indorsement, and therefore, he had no right to complain of the want of notice."

Bond et al. v. Farnham, 5 Mass. 170 [4 Am. Dec. 47], was a case in which the plaintiff, to obviate the necessity of notice to the indorser, proved, that before the note was payable, the maker had assigned all his property to the defendant, for his security against his indorsement. The court considered, that notice was not essential to the plaintiff's right of recovery, and say: "The case most analogous to this, is where a drawer of a bill had no effects in the drawee's hands. He can not insist upon a demand upon the drawee, for he could not expect an acceptance, and he suffers no injury by the want of it. The indorser of a note resembles the drawer of a bill. Although once having effects, as he had a demand on the maker, yet he has afterwards withdrawn from the maker all his property, to enable himself to meet his own indorsement, and had not, when the bill was payable, any remedy, unless, perhaps, the miserable one of seizing the body of a man worth nothing." In Barton v. Baker, 1 Serg. & R. 334 [7 Am. Dec. 620], the court cite, with approbation, Bond et al. v. Farnham, and thought it not unreasonable to presume, that an indorser, situated as was the defendant in that case, took upon himself to provide for the paper indorsed by him. This question was also considered in The Mechanics' Bank of New York v. Griswold, 7 Wend. 165, and the conclusion attained, that where an indorser is amply indemnified by the maker, or where he has taken an assignment of all his effects to meet his responsibility, he can not resist a recovery by insisting on the want of notice.

Prentiss v. Danielson, 5 Conn. 176 [13 Am. Dec. 52], was a case in which the maker of a note had conveyed certain property to the indorser, to indemnify himself against his liabilities and indorsements on account of the maker; the property conveyed was an insufficient security. The court held, that if an indorser receives security to meet a particular indorsement, he waives a demand and notice in respect to that indorsement, but not as to any other. But, inasmuch as the defendant was implicated for the maker to the full amount of the property conveyed, aside from the note in question, and as his liability growing out of the indorsement of the note was extinguished, before the security was given, the conveyance of the property

for his indemnity did not have the effect of reviving it. And in Tower v. Durell, 9 Mass. 332, the principle decided in Bond et al. v. Farnham, is recognized; but the court determined, that where an indorser of a promissory note, believes a demand to have been duly made on the maker, and that notice has been duly given to himself, and believing himself therefore liable, takes measures for his indemnity, this will not excuse the holder from proving a regular demand and notice.

The last case we shall notice is Mead v. Small, 2 Greenl. 207 [11 Am. Dec. 62]. In that case, the indorser had taken a mortgage on real estate, which was a sufficient security for the amount of the note indorsed. The court decided that "if the indorser has protected himself from eventual loss by his own act, in taking security from the maker, such conduct must be considered as a waiver of the legal right to require proof of demand and notice. And we are of opinion accordingly, that the facts before us clearly show such a waiver in the present case." The court also said, that the facts presented a stronger case for the plaintiff, than Bond et al. v. Farnham. There, the property pledged was not a sufficient indemnity, but it was all the maker had— while in the case before them, the security was ample. See also Chitty on Bills, 203; 3 Kent's Com. 79.

The inferences deducible from the cases cited, are:

1. Where an indorser, before the maturity of the note, obtains an assignment of all the maker's property to meet his responsibility, he impliedly waives his right to insist on a demand of payment, and notice of non-payment.

2. Where the indorser receives of the maker a collateral security, whether by mortgage or otherwise, to indemnify him against the consequences of his indorsement, if the security be sufficient, the maker's default will fix the indorser's liability, without the previous steps of a demand and notice. The judge of the county court stated the law to the jury as we have laid it down in our second inference, so that the verdict could not have been influenced by any consideration growing out of the deed of trust; for it clearly appears, that the property covered by the deed was far from being an adequate indemnity.

3. The term “business," in common parlance, means that employment which occupies the time, attention, and labor. That which a man occasionally engages in, as opportunity offers, or inclination prompts, is, for the time being, his business; yet, so far as the question we are examining is concerned, the law uses that term, to indicate a regular and legal employment-not one that is occasional, irregular, or illegal. And a place of business

must be understood to be a place actually occupied, either continually or at regular periods, by a person or his clerks, or those in his employment. If business is transacted there sometimes, but at no stated periods, the occupant, his clerks, etc., can not be supposed to be there at any other time to receive notice of the dishonor of paper. To make a room a place of business, in contemplation of law, the employment must be of a nature not criminal. Thus, a place at which a band of freebooters are accustomed regularly to assemble to divide their unholy thrift, or at which the gambler statedly exhibits his arts, to allure the idle and incautious, can not be regarded as their places of business: for their employments being denounced as criminal, the law will not presume that they should be at the places, at which they are carried on, when they are absent; and, consequently, does not consider an ineffectual effort to give them notice there, equivalent to personal notice.

It was shown at the trial, that the only business pursued by the plaintiff, was that of keeping a livery stable at another part of the city than that at which the room he was sought was situated that he superintended it in person, and was frequently there. It also appeared, that the plaintiff had a dwelling-house in the city, where he resided, and though he might often be found at the room, there was no proof that he carried on any particular business there. These facts clearly show that the room was not used by the plaintiff for any regular business, but his place of business was his livery stable; and either there, or at his dwelling-house, should he have been sought. We deem it unnecessary to determine whether the instruction moved upon this point should have been given, considering the terms in which it was asked: as the judgment must be reversed upon the first ground, the plaintiff, should it become necessary upon a second trial, can modify his motion for instructions, in conformity with the law, as we have ascertained it.

Judgment reversed and cause remanded.

A RESIDENT INDORSER is entitled to personal notice of the dishonor of the paper which he has indorsed; if he is temporarily absent, however, notice may be given by leaving it at his place of business or his dwelling-house, but it will not be in any event sufficient to notify him through the post-office: Wilcox v. McNutt, 32 Am. Dec. 304, and note.

NOTICE IS NOT DISPENSED WITH by the fact that the maker transfers property as an indemnity against any liability that may accrue to his indorser on account of the indorsement: Creamer v. Perry, 28 Am. Dec. 297. To the contrary, and in consonance with the principal case, is Durham v. Price, 26 Id. 267; see also note to the former case, in which the prior decisions in this series are collected.