Exrx. of Price v. Young

delivered the opinion of the court.

• Where a demand can not be made, the law does not dispense with notice. ' The circumstances which prevented it and the notice are still required. , It was the duty of the holder in this case, admitting that a demand could not have been made, to have given the defendant notice in as short a period after having ascertained that the demand could not be made, as she could have been required to do, if a demand had been made. Suppose the demand had been made on the 26th October, and no notice to the defendant had been given until the 10th or 15th of November, could this have been considered as a reasonable time, *341when the parlies were so contiguous to .each other as to have enabled the plaintiff to have given the notice in five hours, or at most in one day ? I presume not. The law is express that the notice shall be given as soon as shall be conveniently practicable. See the opinion of this court delivered by Justice Cheves in this case,. January term, 1818. (1 Nott & M'Cord, 438.) In some cases it becomes a question whether it was practicable to have given an earlier notice than that which is in proof, and this depends on the local situation of the parties and the means of communication. Here they were a few miles apart, and a daily communication between the places of their residence : So that if the rule is to be applied in any case, it must be in this.

The motion is granted.’

dissented as follows : This was an action of assumpsit by the .Executrix of Thomas Price against' the defendant as indorser of a promissory note drawn by Lewis Bryer, and payable 2"6th October, 1816.

Mr. Rivers, lor the plaintiff, testified that Mr. P. the holder of the note, died in June, 1816. Bryer, the drawer, died in September following. He did not believe Mrs. P. looked over the papero of Mr. P. immediately after his death, if she had he had known it. He was present with Mrs. P. and assisted to examine the papers of Mr. P. in the November after his death; at which examination the note in question was found. At the request of Mrs. P. he presented the note to Mr. Toung for payment between the 10th and 18th November, within a day or two after it was found, which was.three or'four days before Mrs. P. qualified as Executrix. After Brycr's death, it was thought he was insolvent. On his cross-examination, he said he understood the note had been settled. Mr. Walker and W. C. Toung were sworn, but testified nothing material to the point now submitted.

*342The presiding Judge charged the jury that legal notice had not been given to the indorser to charge him.

The jury found a verdict for the plaintiff.

The defendant appeals on the ground that legal notice was not given to the indorser.

It appears from the statement of facts which appeared at the second trial, that the demand was made upon the in-dorser immediately after the note was found.; and even before the plaintiff qualified as executrix of the payee : and that the maker never had any representative. In whom then was the laches ? Not in the payee, for he was dead at the time of payment. Not in the plaintiff, for she was diligent even before diligence was incumbent upon her.— She could not demand payment of the maker, Bryer, for he’was dead and had no representatives, and had been too a transient person. Could the plaintiff be rendered liable for neglect to Bryer's creditors ? Surely she could not. — ■ The want of demand on Bryer, and the consequent notice to the indorser arose from the death of both Price and Bryer, and there being no representative of the former tiff November, and never any to the latter, I think the verdict may he supported without violating the principles of law.