.

resonable diligence their places of residence or of business could be ascertained. Subdivisions 1, 2, 4, § 3131, Civil Code.

Holt had his residence or place of business in San Francisco, and to him the note was duly presented at maturity, and payment refused. Yet he had executed the note for his co-defendant Jones upon a power of attorney which authorized him to execute and deliver the note for Jones, but the power of attorney gave him no authority to pay for Jones; and it is well settled that mere authority to execute a promissory note for another does not include authority to pay the note when it becomes due.

Now, it is undoubtedly true that a presentment to only one of two joint makers of a promissory note is insufficient to charge an indorser, unless some legal excuse be shown for the failure to make presentment to the other. Blake v. McMillen, 22 Iowa, 358; S. C. 33 Iowa, 150; Arnold v. Dresser, 8 Allen, 435; Union Bank v. Willis, 8 Metc. 304. The death of one of the joint makers does not constitute an excuse, if presentment may be made to the executor or administrator of his estate. Hale v. Burr, 12 Mass. 86. But the circumstance in this case which distinguishes it from those cases is the fact, proved in the case, that at the time of the execution and maturity of the note Jones had no residence or place of business in San Francisco, or within the state of California. He resided in the state of Kentucky, and the question arises, whether that constitutes a legal excuse for the non-presentment of the note to him at maturity. "It seems," says Justice STORY, in his work on Promissory Notes, "that if the maker of a promissory note resides, or has his domicile, in one state, and actually dates and makes and delivers a promissory note in another state, it will be sufficient for the holder to demand payment thereof at the place where it is dated, if the maker cannot personally, upon reasonable inquiries, be found within the state, and has no known place of business there."

In Ricketts v. Pendleton, 14 Md. 330, which was an action upon a promissory note dated at Baltimore, and in which it was admitted as a fact that the makers of the note had not, nor had either of them, his or their place of business within the state of Maryland, the supreme court of that state held that the fact excused the holder from making demand upon them at Baltimore, where the note was made payable. "The attempt to make demand," said the court, "would have been futile." See, also, Selden v. Washington's Adm'x, 17 Md. 379. And in an action upon a promissory note dated at New Orleans, made by one who resided in the state of Kentucky, it was held by the supreme court of Louisiana that the holder of the note was not obliged to go out of Louisiana to make demand. Hepburn v. Toledano, 10 Mart. 261. "If," say the court, "the maker lives in another country, the indorsees cannot be presumed to know his residence, and all that the law requires of the holder is due diligence at that place where the note is drawn." Id. "This," says Mr. Justice

SHARKEY, "must be the rule of law, for it is impossible to send notice to the domicile of a party who has none, and it would be absurd to require a party to prove that he diligently tried to find that which he proves had no existence." Tunstall v. Walker, 2 Smedes & M. 638; Moore v. Coffield, 1 Dev. Law, (N. C.) 247; McKee v. Boswell, 33 Mo. 567.

Section 3131, Civil Code, affirms the rule of these cases. "If," says the Code, "the principal debtor have no place of business, or if his place of business cannot, with reasonable diligence, be ascertained, presentment for payment is excused."

Error is also assigned that there was no evidence to show that defendant indorsed the note for a consideration. But the presumption was that he had indorsed it for a valuable consideration before its maturity, (sections 3104, 3122, Civil Code,) and he offered no evidence to the contrary.

Judgment and order affirmed.

We concur: MYRICK, J.; MORRIS N, C. J.; McKINSTRY, J.

SHARPSTEIN, J., concurring. In addition to the grounds stated by Mr. Justice McKEE, I attach some importance to the circumstance of payment being demanded of the agent of Jones, who had authority to and did execute this note in the name of Jones. In Philips v. Astling, 2 Taunt. 206, it was held if the drawee of a bill went abroad, leaving an agent in England with power to accept bills, that a bill so accepted by such agent must be presented to him for payment, if the drawee continued absent. If the drawee had accepted the draft himself, and then gone and continued abroad, that would have excused presentation to him. And although it does not appear that the agent who accepted said draft for the drawee had any authority to pay it, or to do more than accept it for said drawee, Lord MANSFIELD held that in order to charge the indorser said draft must be presented to the agent who accepted it.

v.1.no.4-32

When the insertion of an unnecessary word in an information does not tend to the prejudice of the defendant, and does not prejudice the information or the description of the offense, it should be disregarded. Penal Code, §§ 960, 1404.

In Bank.

The Attorney General, for appellant.

S. W. Geiss and Ostrander & Knox, for respondents.

MCKEE, J. Eliminating from the information the word "accommodation," the description of the offense charged against the defendant was unobjectionable. It may be conceded that the word has no common acceptation; it was therefore useless in connection with the charge; and as its insertion in the information did not tend to the prejudice of the defendant, in respect to a substantial right, and did not prejudice the information nor the description of the offense, it should have been disregarded. Sections 960, 1404, Penal Code.

Judgment reversed, and cause remanded, with instructions to overrule the demurrer.

We concur: MORRISON, C. J.; McKINSTRY, J.; Ross, J.

(30 Kan. 156)

SUPREME COURT OF KANSAS.

MATTHIAS PEAK

v.

JOSEPH T. ELLICOTT.

Filed July 5, 1883.

The plaintiff executed a note to the bank for a loan of $782.50, and afterwards, at the request of the cashier of the bank that he should pay the same, and upon his promise to send and get the note then owned and held by another party, he delivered to the cashier, before the note was due, the amount thereof, and the cashier executed to him the following receipt:

"THE RILEY COUNTY BANK Oof Manhattan, Kansas, November 22, 1881. "Received of M. Peak seven hundred and eighty-two 50-100 dollars, in payment of note for same amount, due February 12, 1882. J. K. WINCHIP, Cashier." -and then credited the amount so received from the plaintiff to the cash account of the bank, but the bank failed to pay the note or any part thereof at its maturity, and appropriated all the money to its own use. Held, that by the transaction the relation of principal and agent exists between the plaintiff and the bank as regards this specific fund; and held further, that upon an assignment by the bank of all its property and effects to an assignee, in trust for its creditors, the plaintiff has a right to follow and reclaim the fund from the assignee, as the money is a trust fund and not assets of the bank, and does not pass to the assignee for distribution to the general creditors of the bank.

Error from Riley county.

Action commenced February 17, 1882, by Matthias Peak v. Joseph T. Ellicott, as assignee of the Riley County Bank of Manhattan. The petition (omitting court and title) was as follows:

"The said Matthias Peak, plaintiff above named, complaining of the defendant herein named, sets forth and shows unto the court that the Riley County Bank of Manhattan, Kansas, was at the time. hereinafter named a corporation created by and existing under the laws of the state of Kansas, and doing and transacting a general banking business in Manhattan, Kansas; that during the year 1881 J. K. Winchip, deceased, was the cashier of said bank, and was at the time more particularly named hereafter; that on the twelfth day of October, 1881, the said plaintiff applied to the said bank, through its cashier, for a loan of seven hundred and eighty-two 50-100 dollars for the period of four months from that date; that his said application was granted; that he thereupon executed his promissory note in writing of that date, which is in words and figures following:

"$782.50.

MANHATTAN, KANSAS, Oct. 15, 1881. "Four months after date, for value received, I promise to pay to the order of the Riley County Bank of Manhattan, Kansas, seven

hundred eighty-two 50-100 dollars, at the Riley County Bank of Manhattan, with twelve per cent. per annum from maturity until paid. "M. PEAK.

----and delivered the said note to J. K. Winchip, cashier of said bank, and received from him the money therefor, less a discount for the period above named; that afterwards, to-wit, on the twenty-second day of November, 1881, said plaintiff had on deposit in said Riley County Bank, to his credit, a large sum of money, to-wit, between three and four thousand dollars, and was desirous of drawing the same from said bank, and made application to its cashier for the same; that the said J. K. Winchip, cashier as aforesaid, then asked the plaintiff to pay his said note of $782.50, as above set forth, and thereupon, although the said note was not due, agreed to and with the said cashier of said bank to pay the same; that the said J. K. Winchip, cashier as aforesaid, told the plaintiff that the note was not there, but that he would send and get the same, and thereupon plaintiff gave him, the said J. K. Winchip, cashier as aforesaid, seven hundred and eighty-two 50-100 dollars for the purpose of paying and to be applied on said note, and made and gave to plaintiff a receipt against said note, which receipt is in words and figures as follows: "THE RILEY COUNTY BANK OF MANHATTAN, KANSAS, Nov. 22, 1881. "Received of M. Peak, seven hundred and eighty-two 50-100 dollars, in payment of note for same amount, due February 12, 1882. "J. K. WINCHIP, Cashier.

"And plaintiff, further complaining, says that at the time said receipt was executed and the money so received by said bank, the Riley County Bank was not the owner or holder thereof, but prior thereto had sold, for a valuable consideration, and had indorsed and delivered, said note to the Harrison National Bank of Cadiz, Ohio, who, at the time of the transaction set forth, was the owner and holder thereof, and that the said sum of money so paid by him was never transmitted to the Harrison National Bank of Cadiz, Ohio, nor was said note returned to him by said bank; that the said J. K. Winchip, cashier as aforesaid, by his statements induced said plaintiff to believe that the said bank of which he was cashier was still the owner and could control the aforesaid note.

"Further complaining, plaintiff says that on the fifteenth day of February, 1882, when said note matured, the Harrison National Bank of Cadiz, Ohio, presented said note for payment, and said plaintiff was compelled and did pay to the said Harrison National Bank the sum of seven hundred eighty-two 50-100 dollars for the said note. That the sum of money, to-wit, seven hundred and eighty-two and 50-100 dollars, so paid the said J. K. Winchip, cashier, was credited to the cash account of the said bank, and held and appropriated to its own use.