The rule is settled that although the maker of a note has become absolutely and notoriously insolvent, a demand must be made upon him for the payment of the note.1 This rule seems to be supported by no very sufficient reason, for (to quote a morsel of that species of ingenious Latinity which is the peculiar glory of the law) lex non cogit ad vana (the law does not require a vain and useless act). The indorser ought not to require such an act to be performed. But the law has been settled by very high authority,2 although the decisions which so rule do not display any background of thought.

15 See Sec. 149, ante, and Sec. 349, post

16 Gee v. Williamson, 1 Port. 313.

17 Alexander v. Dennis, 9 Port. 174.

18Bissell v. Bozman, 2 Dev. Eq. 154.

19Hellings v. Hamilton, 4 Watts & S. 462.

20 Bruce v. Lytle, 13 Barb. 163; Boyd v. Bank of Toledo, 32 Ohio St 526.

21 Perkins v. White, 36 Ohio St. 530. For usury see Copp v. Mc-Dougall, 9 Mass. 1

1 Oliver v. Munday, 3 N. J. Law, 982; Manning v. Lyon, 70 Hun, 345. Contra, Kiddell v. Ford, 3 Brev. 178.

2 French v. Bank of Columbia, 4 Cranch, 141.

The fact that the maker was insolvent at the date of the indorsement is no excuse for a failure to demand payment of the note.3 The courts seem to have considered that a man can pass from insolvency to solvency with facile celerity. Even if the fact of insolvency were known to the indorser and he indorsed the paper when overdue, he has yet been considered entitled to a demand,4 but this proposition is denied.5 If the indorser was merely an accommodation indorser for the benefit of the maker, the latter's insolvency was no excuse for a want of a demand.6 If the indorser of the insolvent's paper is a guarantor he is not entitled to notice,7 but he would not be even though the maker were not insolvent, by the better rule. The insolvency of the acceptor does not excuse presentment for payment under this rule,8 nor does the insolvency of the drawee,9 even though the drawer had reason to think the drawee was insolvent.10 As to a check, the insolvency of the bank ought to seem sufficient reason to any court for not making a demand,11 either as to the drawer or the indorser. The assignment of the drawer of a check must excuse demand upon the bank,12 or if the drawer tells the payee that he has withdrawn his funds from the bank.13 There is no difference between the two cases.