took time, till the next term, to consider, and on the 14th of April, 1824, CRANCH, Chief Judge (the other judges assenting), delivered the following opinion:
I have not been able to find any case in the books exactly in point. In Carvick v. Vickery, 2 Doug. 653, the bill was drawn by two who were not in partnership, in this form: “Pay to us or our order,” and was indorsed by one only. The court held that they were to be considered as partners in that transaction, and that the indorsement of one alone was sufficient; but on the trial it was proved by bankers, that by the uniform custom and usage of business, the indorsement of both was necessary, and so the jury decided, and I think correctly. Even in cases of general partnership, if the transaction be with one of the firm for his own separate benefit, the others are not bound, unless they had notice. Bignold v. Waterhouse, 1 Maule & S. 259. If a bill be drawn on two persons, not partners, an acceptance by one is not sufficient. Marius, 16; Carvick v. Vickery, 2 Doug. 653. It seems from this, that such a bill must be presented to both for acceptance; and if accepted, must be presented to both for payment before it could be so dishonored as to make the drawer liable. It seems to me that the undertaking of the defendant in the present case, as indorser of the note, was, that he would pay it, if the makers of the note did not, when payment should have been properly demanded of them. If either of them should pay it, the indorser would be discharged. He did not undertake, that if either of the makers should refuse to pay it, he would; but that if all of them refused to pay it, then he would be responsible. Otherwise the greater the number of makers, the greater the risk he would run of being obliged to pay it in the first instance; for the holder might choose to demand it of the only insolvent among them.
Upon general principles, then, I think that payment should have been demanded of each of the makers. But it is said that Winemil-ler, upon whom no demand was made, resided in Maryland, out of the jurisdiction of the court, and therefore the plaintiff was not bound to demand payment from him; and á case in 14 Johns. 114, is relied upon. That case is only alluded to by the judge, who does not even give the name of the ease, nor of the court by which it was decided, nor the date of the decision. It was also a case of removal. But Winemiller has always resided in Maryland, since and before the date of the note; at least there is no evidence to the contrary. If he had been the sole maker of the note, and had always resided in Maryland, I should suppose there could be no doubt that the demand must have been made upon him. The circumstance that another is jointly and severally bound with him, cannot, in my opinion make any difference in that respect
In Fisher v. Evans, 5 Bin. 541, it is decided that it is not sufficient to look for the drawer at the place where the bill is dated, if his residence be elsewhere. His being out of the jurisdiction of the court makes no difference. The notary who made the demand upon Crawford in Georgetown, was not bound, as a notary, to go out of his jurisdiction, whatever may have been his duty as agent of the plaintiff; but this did not discharge the plaintiff from the obligation of making the demand. It was not necessary that it should be made by a notary public; a demand by any other agent would have been sufficient. From the circumstance that the note is dated at Georgetown, I think it cannot be inferred that it was to be paid there, or that the defendant undertook that the makers should be found there when the note became payable, so as to dispense with a demand of payment at the actual residence of the makers.
It is said that where there are a great number of joint and several makers of a note, it may be impossible to make demand upon all of them on the same day. This is true; and if such were the case, the law would not require the demand to be made upon all on the same day, for it never requires impossibilities. But this would go only to dispense with the time of the demand, not with the demand itself. Freeman v. Boynton, 7 Mass. 483. The drawer of a bill undertakes that the drawee shall be found at the place of his residence described in the bill, when presented for acceptance; but he does not undertake that he shall remain or be found there when the bill becomes payable. If he be found there when the bill is presented for acceptance, and accept the bill, and afterwards remove, I apprehend the holder is bound to use due diligence to ascertain the place to which he had removed, and to demand payment there. In *727the absence of direct authority on the - subject, I feel bound, upon general principles in analogous cases, to decide that the defendant is discharged from his liability by the neglect of the plaintiff to demand payment from Winemiller, one of the joint and several makers of the note.
Judgment for the defendant.