Branch Bank at Montgomery, use, &c. v. Gaffney. assumed as a legal conclusion, that a demand should have been made, and notice of its dishonor given, within any precise time. It is certainly the duty of the indorser, who become the proprietor of a note after its maturity, to demand payment of the maker within, a reasonable time after the transfer to him of paper, and if refused, to give notice of nonpayment to the indorser. The undertaking of the indorser is made upon these conditions, and unless they are performed, it cannot become absolute, so as to entitle the holder to his action against him. See Kennon v. McRae, 7 Ala. Rep. 175, and cases there cited. Where a bill is indorsed after due, the indorsement is said to be equivalent to drawing a bill payable at sight. [Chitty on Bills, 9th Am. ed. 242.] If this analogy be just, then it is impossible to lay down the 1 measure of diligence which the indorsee, in such case, should employ, in order to secure the liability of his indorser. “With respect to the time when bills payable at, or after sight, should be presented for acceptance, the only rule, whether the bill be foreign or inland, and whether payable at sight or so many days after sight, or in any other manner, is, that they must be presented within a reasonable time; and as the drawer may sustain a loss by the holder's keeping it, any great length of time, it is advisable, in all cases, to present it as soon as possible; but he is not obliged to present it by the first opportunity." [Chitty on Bills, 301.] The authorities all show, that the rule in respect to the payment of a bill payable at, or after sight, must necessarily vary with the circumstances of every case. Eyre, Ch. J., in Muilman v. D'Equino, 2 Bla. Rep. 56, considering the law upon this point, said, "I do not see how the can lay down any pre cise rule on the subject ;" and Heath, J., observed, "No rule can be laid down as to the time for presenting bills payable at sight, or a given time after." See further, Chitty on Bills, 301 to 305, and cases cited in the notes. The reasonableness of the time within which the demand or payment should have been made, and notice of the maker's default communicated to the defendant, depends upon the distance the respective parties reside from each other, the facility of communication, &c.; and consequently cannot be defined by law. In all such cases, the facts must be ascertained by the jury, and their Branch Bank at Montgomery, use, &c. v. Gaffney. verdict should be influenced by such legal analogies as are established. It results from this view of the law, that the court should not have assumed that there had not been sufficient diligence used to charge the defendant on his indorsement; if the evidence had shown, that a demand had been made of the makers, payment refused, and notice thereof given to the indorser. The bill of exceptions affirms, that the only proof of a demand, was the institution of a suit upon (the note, which the plaintiff ascertaining would prove unproduc tive, notified the defendant, that he would be looked to for payment.... Where a party promises to pay on demand, it has been frequently held, that an action may be brought without a previous request, and the service of process is a sufficient demand. But that principle cannot apply to this case. Here, the undertaking of the defendant was, that the note should be paid on presentment to the makers, and that if they did not pay it, if duly presented, he would, if due notice of their default was given to him. The presentment for payment, then, was a condition precedent, and to warrant a recovery, against the defendant, the condition should have been complied with. [Chitty on Bills, 384, 385, note 1.] To make a demand good, it has been held, that it should be made by one who has the indorsed paper under his control, either as holder or agent; and that the demand contemplates a readiness to receive the money, if the party offers to pay it. [Chitty on Bills, supra, and 401, 402.] The writ, or summons, by which a suit is commenced whom it is addressed, with a it is not, in form, a request to pay it, nor does it suppose that the defendant therein will pay it, otherwise than by legal coercion. There was, then, no sufficient demand of the note, and the notice, which was merely consequential, can avail nothing... es not invest the officer to to receive the money There was no proof adduced at the trial, of which the bill of exceptions informs us, which dispensed with, or excused a demand and notice. It cannot be assumed from the form of the note, that it was not an operative security for money Bissell & Carville v. Lindsay, et al. in the hands of Felder-in fact, its indorsement by him and the defendant, may be regarded as an affirmation that it was recoverable of the makers. In the Planters' and Merchants' Bank v. Blair and Morrah, 4 Ala. Rep. 613, it was held, that when a creditor receives a note from his debtor, with other persons as security, and the note is made payable to a bank, under the expectation that it will be discounted, the securities are not discharged by the refusal of the bank to discount it; but the creditor may sue in the name of the bank, or transfer the note to another, who may in like manner use the name of the Bank to collect the money. See the cases there cited, which fully sustain the conclusion of the court. There is, then, no pretence for saying, that the note in question was made for the accommodation, merely, of Felder, or the defendant, and that they could not be prejudiced by its nonpayment. This view is decisive of the case, and the judgment of the Circuit Court is affirmed. BISSELL & CARVILLE v. LINDSAY, Et al. 1. When property is conveyed to rust for others, and is subsequently levied on as the property of the grantor, the trustee is not entitled to go into equity to restrain the creditor. 2. Quere? Whether a State Court can restrain a party to a suit in the Courts of the United States, or the officers of those courts, from making a levy; but however this may be, the Marshal may be sued in detinue, either at common law or under the statute, for the recovery of slaves owned by a stranger, but seized under execution; and the Marshal's refusal to accept a claim bond under our local statute does not invest a court of equity with jurisdiction. Bissell & Carville v. Lindsay, et al. Appeal from a decretal order of the Court of Chancery for the 19th District. THE case made by the bill is this: In 1814, at Charleston, South Carolina, Thomas Bennett, the elder, made his last will, whereby he devised a lot of land, situate in Charleston, and bequeathed two slaves, as well as $3,000 in money, to Thomas Bennett, the younger, in trust, that the rents and uses of the lot, wages and labor of the slaves, and the interest, avails and produce of the money, should go to, and be allowed to, and for the support and benfit of John S. Bennett and his wife, jointly, during their lives; and after the death of either, to the survivor in the same manner; and upon the death of the survivor, to the children of John S. Bennett, who shall survive him and his then present wife, and to his, her, or their assigns forever. But in case there should be no such surviving child or children, then to revert to the right heirs of the testator. The complainants charge, that the testators intention was, that the legacy was to be held by John S. Bennett, his son, free from his debts, contracts and engagements; also, that the will was deemed fully effectual for that purpose, by the laws of South Carolina. After the death of the testator, the will was duly admitted to probate, in South Carolina, the legacy assented to by the executors, and the trust assumed by Thomas Bennett, the younger, who continued to act until the year 1834, during which he resigned the trust, and the complainants being then substituted in his stead, assumed the execution of the trusts, and continued to discharge the duties of trustees when this bill was filed. Sometime in 1834, John S. Bennett, being about to remove with his family to this State, applied to Bennett, the trustee, for him to invest the funds so bequeathed in slaves, and ten slaves were purchased by the trustee, for the sum of $3,360, to be held under the trusts of the will; at the same time the complainants received from the trustee $1,052, of the trust funds, to be invested in buying and settling lands, for the benefit of the trust. No bill of sale was executed by the trustee for the slaves, but merely an account current of Bissell & Carville v. Lindsay, et al. the trust estate with himself, showing a balance in his hands to the credit of the trust, of $1665. The first wife of John S. Bennett died in 1817, leaving two children surviving, who are now respectively the wives of the complainants, and he afterwards married another, who was living when the bill was filed. On the 23d March, 1836, the complainants assert that John Bennett was indebted to them, as trustees, in the sum of $1052, which he had received from the trustee, Thomas Bennett, as well as $430 which he had received on the sales of the two slaves specifically bequeathed to the trust, and being then in the possession of a plantation in Dallas county, and having expended these sums of money in its settlement, conveyed the plantation and the slaves so purchased with the trust funds, and one other slave, to the complainants. This deed was recorded in the County Court of Dallas, and the complainants assert, was intended to meet the same conditions as set forth in the will of the elder Bennett. The deed is exhibited, and purports to be in consideration of $10,000 paid by the complainants, and of the natural love and affection which he bears to his children, nine in number. The trust declared, is for the use of the grantor and his wife, during their joint lives, with remainder to the survivor, but to pay $3000 each, to the respective wives of the trustees, on the death of the grantor, which the deed asserts is in conformity with the will of their grandfather, Thomas Bennett. Each of the other children, as it became of age, or married, was to receive the same sum, and the residue, after the death of the grantor and his wife, to be equally divided between the surviving children and the issue of those who should be dead. Another deed was executed by John S. Bennett, on the 19th October, 1839, conveying eight other slaves to the complainants, in trust, that Bennett and his wife should remain in their possession, and use, during their joint lives, and the survivor, during his or her life, with remainder to the children then living, of the said Bennett, and such as should thereafter be born. The consideration expressed is $5000, and natural love and affection, but the complainants assert the true consideration to be, the receipt by Bennett, since the |