Page:Federal Reporter, 1st Series, Volume 6.djvu/361

 WBSTPHAL V. LUDLOW, 349 �ing that "the maker would pay it at the Worthington bank; then you [plaintiffs] can credit me with ail you get." �The plaintiffs sent the note to the Worthington bank, and on November 22d, after its maturity, wrote the bank : "Mr. C. St. John Cole's note is now past due. What does he say about it ? and what are the prospects of its being paid ?" The bank answered, November 25th: "C. St. John Cole's note (No. 1386) is still unpaid. We think he can pay something on it in 10 days. Shall we keep it or return it ?" November 27th the plaintiffs instructed the bank to keep it 10 days. On December 6th the bank returned the note, informing the plaintiffs that Cole was closed up by levy on goods that day. On December 9th plaintiffs returned the note to the defend- ant, and he, through an attorney, sent the note back, stating "that the same had been lost and become worthless through your [plaintiffs'] negligence." �Defendant was informed, November 27 or 29, 1878, that the note was unpaid and in bank, and did not write the plaintiffs or take immediate steps to obtain possession of it; but, on the contrary, wrote them, November 29th, that "Cole is behind some, but is taking everything iu rotation, and says he willget to that note, he thinks, the last of nextweek." �Cole confessed judgments and the sheriff took possession of his stock, valued at $2,200, December 6th, which embraced ail of his visible property. This amount was not enough to pay ail of his indebtedness. The evidence is that on Novem- ber I7th, when this note matured, Cole was in no better finan- cial condition. �Rogers e Rogers, for plaintiffs. �Chas. D. Kerr, for defendant. �Nelson, D. J. The plaintiffs are not held to the strict rules in regard to the presentment, at maturity, of the note taken as collateral security, and notice of non-payment to his debtor. The note was not received, although indorsed by the defend- ant, upon the condition that they would use such diligence. It does not represent the original debt, and to hold the de- fendant it is not necessary that the plaintiffs should regularly proceed to have the note presented and protested. It waa ��� �