The use of due diligence may be considered as an excuse for failure to notify, as may miscarriages in the mail, or failure of the person to deliver with whom the notice is left where a proper personal service has been made. Those cases have been considered.1 The excuses for failure to demand or to give notice arising from the nature of the paper have also been considered.2 An agreement between the maker and indorsee, postponing the time of presentment for payment, will not excuse a notice of non-payment to the indorser when dishonor takes place,3 unless the indorser became a guarantor or waived demand and notice.4 The absconding of the indorser or drawer,5 or his departure without leaving any address or agent6 that can be discovered with due diligence, excuses any service of notice. The same facts as to the drawer's lack of funds in the hands of the drawee that will excuse a demand upon the drawee will excuse notice to the drawer,7 but while it will excuse demand as to the indorser, it will not excuse notice of the dishonor to him,8 unless he was the real drawer of the bill or maker of the note.9 The question of the insolvency of the maker excusing a demand upon the maker and notice to the indorser has been noticed.10 The rule must necessarily be that where a demand upon the maker of a note is excused notice to the indorser is not excused,11 unless he was a guarantor.12 The insolvency of the drawee will not excuse notice to the drawer or indorser;13 nor will the insolvency of the drawer excuse notice to the indorser.14 The indorser of a check is in the position of the indorser of a bill and entitled to the same rights.15 Where a demand as to an indorser is excused on account of the fraud of the indorser,16 or on account of the fact that owing to a forgery the indorsement transfers nothing,17 notice to the indorser is not necessary. The case where the indorser of a note becomes personal representative of the deceased maker prior to dishonor has been hereinbefore noticed.18

3 See Sec. 298, post, notes 20, 21.

4 Agan v. McManus, 11 Johns. 180.

5 Jagger v. German Am. Bank, 53 Minn. 386.

6 Lane v. Bank of West Tennessee, 9 Heisk. 419.

7McMean v. Little, 3 Baxt. 330.

8 West Branch Bank v. Feltmer, 3 Pa. 399; Fuller v. Hooper, 3 Gray, 334; Go wan v. Jackson, 20 Johns. 176. For the rule as to demand, see Sec. 208, ante. But the fact that the maker is a partner of the indorser, and the same person acted for both, does not excuse either demand or notice. Dwight v. Scovil, 2 Conn. 654. See Foland v. Boyd, 23 Pa. 476; In re Grant, Fed. Caa No. 5691. This rule is not applied where the indorsers are a majority of the maker's board of directors (Phipps v. Harding, 70 Fed. R. 468, 34 U. S. App. 148); nor where a stockholder indorses for his corporation (Field v. New Orleans Newspaper Co., 21 La. Ann. 24). Contra, Hull v. Myers, 90 Ga. 674. This is the case in which the judge delivering the opinion pompously announced that good sense and good law are the same unless violently sundered by judicial ignorance. In Phipps v. Harding, supra, the conclusion of the learned judge is pointedly condemned by a court of appeal. Query, which of the courts was judicially ignorant? 9SeeSec. 281, ante, note 22 10SeeSec. 281, ante, note 22.

1 See Sec. 274, ante.

2 See Sec. 208, ante.

3 Sice v. Cunningham, 1 Cow. 397; Worden v. Mitchell, 7 Wis. 161. So of paper indorsed overdue. Notice must be given upon dishonor. Jones v. Robinson, 11 Ark. 504; McKeever v. Kirtland, 33 Iowa, 348; Grant v. Strutzel, 53 Iowa, 712; Rosson v. Carrol, 90 Tenn. 90; but see Jordan v. Hurst, 12 Pa. 269. An agreement as to notice between the maker of the note, or the drawer of a bill and the holder, known to the indorser, is binding upon him.

Peai'son v. Bank of Metropolis, 1 Pet 89.

4 See Sec. 241, ante, and Sec. 298, note 25, and Sec. 299, notes 6, 10, post.

5 Williams v. Bank of United States, 2 Pet. 96.

6Williams v. Bank of United States, 2 Pet. 96. 7 See Sec. 264, ante.

8 See Sec. 264, ante.

9 Farmers' Bank v. Van Meter, 4 Rand. 553.

10 See Sec. 263, ante.

11 See Sec. Sec. 264, 265, 266, ante.

12 See Sec. 241, ante.

13 See Sec. 263, ante.