#### John Haslett *v. W.*Kunhardt.

Action on a note against the indorser — question of diligence. The note was payable at sixty days, and fell due on the 23rd and *payable*on the 25th of May, 1837. On the 22d or 23d of May, the maker and his whole family were drowned near Sullivan’s Island, and were buried on the 24th. The indorser had been on terms of intimacy with the maker and attended his funeral. On the 25th, notice of non-payment was given to the indorser. The maker, as far as it appeared on the trial, left no will; and up to the time of notice, no administration had been, or indeed could have been taken out on his estate. Held that all due diligence had been used under the circumstances, and that a formal demand at the *late*dwelling of the deceased and family, (then unoccupied and deserted,) would have been worse than useless, and any other, impracticable or unnecessary. (Bichardson, J., dissenting.)

*Before BUTLER, J., at*Charleston, *January Term,*1839.

The report of his Honor, the presiding' Judge, is as follows:— “ This was an action of assumpsit on a promissory note, against the defendant as indorser. The maker of the note was one Horatio Leavett and indorsed by defendant. It was made payable sixty days after date for $800; the sixty days expired on the 23d of May, 1837, so that the last day of grace was on the 25th; on the 23rd, the maker Leavett, and his whole family, were drowned near Sullivan’s Island, and were buried on the 24th or 25th. The defendant, who was the indorser, was intimate with Leavett and attended his funeral. A few days afterwards, perhaps on the 25th, Alexander Robertson, a notary public, gave notice to the indorser that the payee would hold him liable. The defendant said on a subsequent occasion, that he held himself liable to pay the note, supposing that Leavett’s estate would prove solvent — the general opinion being at the time of his death that he was a rich man. It turned out, however, that his estate could not pay his debts: and the defendant then contended that he was not legally liable as indorser to pay the note, no demand having been made on the maker’s representatives. The plaintiff proved that Leavett left no *190will, or that none was ever found. On this state of facts, the defendant moved for a nonsuit at the trial. I overruled his motion and suffered the plaintiff to take a verdict. On the 25th, when the notice was given to the indorser, a demand would have availed nothing. At that time there could be no administration, and there was not an inhabitant left in the deceased’s house. It would have been worse than a mockery to have made a demand under such circumstances. It would have been to resort to the artificial rules of human laws to obviate the decrees of Providence. The reason of a demand ceasing, the necessity for it ceased also.”

The defendant renewed his motion, for a nonsuit, or new trial, on the following grounds: 1. Because the plaintiff did not use due diligence to recover payment of the note from the maker. 2. Because the circumstances respecting the maker’s death and that of his family, do not, and cannot legally, excuse the plaintiff’s failure to demand payment of the note at the place where he resided while living, or from not having searched the offices to ascertain who were the maker’s representatives, previous to notice being served on the indorser. 3. Because the notice sent to the defendant was insufficient and not a legal notice. 4. Because the. evidence offered ta establish the fact, that there was no will left by the maker of the note, was incompetent and ought to have been rejected.

Curia, per Butler, J.

The reason of a rule will generally direct its proper application. An indorser of a bill, or note, undertakes to pay it, on condition that the maker should fail to do so on the day on which it is legally due and payable, which is the last day of grace. To ascertain whether the maker will pay, a demand is generally necessary, with a view of giving notice to the indorser of non-payment; otherwise, the indorser might be lulled into a false security, and might lose an opportunity of using such means as were in his power to indemnify himself. There are many instances where an actual demand, on the day, cannot be made. In such cases, the holder should give prompt notice to the indorser, when that is practicable. The notice to the indorser is of more importance than a demand on the maker, where circumstances will not allow an actual demand. No rule of law is so inexorably in*191flexible as to admit of no relaxation or exception. There are some circumstances which would not only render a demand unavailing, but an effort to make one, revolting. Suppose a holder and an indorser of a note, to live in the neighborhood of a city that had been destroyed by an earthquake, and the maker to be involved in the common ruin, would the law require the holder to go to the lake of ruins and go through the form of making a demand, with the purpose of fixing the liability of the indorser *1*In the case before the court, it appears that the maker of the note and his whole family were buried on the day before the last day of grace, on which the note was legally made payable. According to the testimony, nota white inhabitant of his household survived; and yet it is said a demand should have been made on a tenantless house, or at some of the public offices. I ask for what end should this have been done ? It was impracticable and legally impossible that any demand could have been made. The plaintiff, on the trial, proved the negative, that the maker left no will; and it was legally impossible that there could have been an administrator to represent him, on the 25th, when demand should have been made; on whom then could the demand have been made ? It is said that it should have been made at the house of the deceased. Who was there to make any answer to the call of the dunner? He might have rung the bell, or rapped with the knocker, and the only response would have been the echo of the sound in deserted chambers. As the counsel for plaintiff remarked, the notary might as well have clamoured at the recent grave. It was a mockery to make a demonstration of demand, when there *was no one,*to receive and answer to it. The law is reasonable in its requirement. *Lex neminem cogit ad vana seu impossibilia.*The plaintiff did what was obviously reasonable, and what common sense dictated, and that which the law sanctioned. He advertised the defendant, by express notice, that the note was not paid on the 25th, and that he would hold .him liable. The defendant was well acquainted with all the circumstances that would excuse the want of demand, and assented to his liability to pay the note. It is said, however, that the notice was not legally sufficient, and was premature. The notice was explicit that the note was not then paid, to wit, on the 25th, nor likely to be paid; and surely *192it was not necessary to recapitulate in it the fact of the 'maker’s death. That would be to suppose that the notice could give more information than the defendant had, who attended the funeral of the deceased. When a note is not paid on the day, the earlier the notice to the indorser, the better, so far as it could answer any purpose. An indorser may well complain that he has received no notice, or one that came to him too late; but it can rarely be a cause of complaint that it is too promptly given. If the defendant had received no notice at all, or one that was given after the time when he could have made exertions to save himself, he might well have complained' and demanded exemption. When a demand cannot be made, that fact should be communicated to the indorser within a reasonable time, and an omission to do so may well be taken advantage of by him, as was properly held in the case of Price v. Young, 1 N. & M'Cord. Rep. 438. It was supposed that the above case is conclusive of the question in this; so far from it, in my opinion it is different from the one before the court in many essential particulars. The most striking difference is, that in one there was no notice to the indorser, and in the other there was.— In the case of Price and Young, the note was legally payable on the 26th October, and no notice was given to the *indorser*until some time in November; this was held to be equivalent to no notice at all. In this case, on the contrary, notice was given on the last day of grace, and when it was ascertained that the note would not be paid. The striking difference between the cases does not end here: In the first case, Bryce, the maker, died in September, more than a month before the note fell due. Within that time his estate might have had a representative appointed by the law, who could answer to the demand. When one dies, administration is usually taken out on his estate within six or eight weeks after his death. This is the probability. Hence an inquiry at the public office might not be unavailing; but it is very different where not more than twenty-five hours have elapsed after one is put in the tomb; within that time no one could possibly be an administrator. In the case of Price and Young, Judge Cheves seems to concede, that if it had been proved that the maker was a transient person, having no residence, it would have been a suffi*193cient excuse for not making a demand, provided that fact was communicated to the indorser by notice. When it is apparent that the maker has left no one in his house, at his death, to represent him, and there was not sufficient time for the law to make a representative, it would be more impossible to make a demand than on a transient person having no residence. Upon the whole, we are satisfied with the circuit decision and refuse the motion.

Gantt, O’Neall, Evans and Earle, Justices, concurred.

Richardson, J.,

dissenting. The single question is, whether the death of Mr. Leavett, the maker of the note, dispensed with the necessity of the holders making a demand of payment, in order to fix the liability of the indorser. The mournful occurrence of Mr. Leavett’s whole family being swept off, at the same moment, cannot modify the established rules of law. Whenever an unmarried man having no family dies, he, like Mr. Leavett, leaves none to represent him; and if he be also a transient man, he further leaves neither known habitation, nor servant, which would be even a clearer instance of utter destitution left behind, than the melancholy one before us; yet Chitty in his authoritative treatise on Bills, lays down this rule, “ That the bankruptcy, insolvency, or death of the acceptor of a bill, or maker of a note, *however notorious,*will not excuse the neglect to make due presentation; and in the last case, (death,) it should be made on his personal representative, and in case there be no executor or administrator, then *at the house of the deceased;*or the drawer, or indorser, will be discharged.” Comment cannot be necessary. The want of a representative in cases of recent death, must of course be frequent, which brings in the worst alternative, and sometimes there is no fixed habitation, but not in this case. The true question is not upon what the rule is, but whether it has been adopted in South-Carolina. I once struggled against the application of this severe rule, on the second hearing of the case of Price v. Young, 1 M'Cord. 340. In that case, both the maker of the note (Bryce,) and the payee (Price), died before the note was due ; but there was no demand or presentment for payment.

There would seem to have been in this case very unusual circum*194stances to excuse the want of a demand. Yet, Judge Cheves, (perhaps the greatest commercial lawyer ever on our bench,) and the court, adopted the rule expressly; they say, (1 N. & M’Cord. 438) “it was contended that the death of the maker dispensed with proof of demand, unless it had been proved that the maker had a legal representative; but it was correctly replied that such proof was not requisite, but that the law required proof of some efforts to make the demand. If the proper offices had been searched and it did not appear that he had a legal representative, then a demand made at the accustomed dwelling of the maker when alive, would have been sufficient and was necessary, or proof that he was a transient person, or the like, might have been sufficient; but no such proof was given. This ground (of the indorser), say the court, is supported.” In this case the rule laid down by Chitty is explicitly adopted, with a third alternative, or proof, that he was a transient man; but that is not surmised of Mr. Leavett. I can perceive, therefore, no distinction between that case and the one before the court, and consider the rule established. It is to be remarked, that at the second trial of Price v. Young, there was proof that Bryce was a transient man, as well as a supposed insolvent, and a verdict being given the second time against the indorser Young, the court delivered no opinion whether that fact would dispense with the demand, but granted a nonsuit to the indorser, for want of timely notice to him. It appears to my understanding, that there arises sometimes a mistake upon the term “ demand.” It does not always signify a personal request of payment; but it often means a mere presentment or exhibition of the note, at the proper time and place, by some one authorised to demand and receive payment — which is often all that can be done, as where a noté is payable at a named bank or town, the presentment is there made, whether the maker be there or not. But it is this kind of authorized diligence which constitutes the demand that fixes the indorser upon notice thereof. *In reference to the indorser,*the holder of a note is never to assume that it will not be paid by the maker, his agents, or friends; an insolvent man, or a deceased, may have made a proper provision, or have friends to act for him. If the holder will assume the contrary, he may do so, and may be *195well commended, as in the present instance; but he must do so at his own risk and not expect to debit his neighbour with the possible loss that may follow his good dispositions. The rights of an indorser, who is only a provisional surety, cannot be thus compromised. The demand of payment, in its proper sense, is matter of substance, and the note must be presented at the proper time and place, with authority to receive payment, and this is the condition precedent to the liability of the indorser under the rule established. The subsequent notice to him, is more a matter of form. See the case of Halls, Kirkpatrick & Co. v. Howell, Harp. Rep. 426, for this distinction well laid down.

Note. — In the case of Galpin v. Hard, 3 M'Cord. Rep. 394, the court say, “ the necessity of a personal demand upon the drawer, to render the indorser liable, is superseded in a variety of instances, which would impose on the holder an unreasonable degree of labor and inconvenience. So it seems that if the holder cannot discover the place to which the drawer has removed, it is sufficient to excuse him from making a demand, or where the drawer has removed into a distant country.”

In an action on a note by the indorsee, against the indorser, drawn in Charleston, it appeared by the testimony of the notary, that on the day the note became due, he made diligent search for the maker in Charleston, and could not find him, but understood he had removed to Philadelphia; and that he gave notice of non-payment, on the same day, to the indorser. The court held that any demand was dispensed with, and that the indorser was bound. Gillespie v. Hanahan, 4 M'Cord. Rep. 603.

In Massachusetts, where the maker of a note died and an administrator was appointed before the note became payable, (the day of payment falling within a year from the time of his appointment,) it was held that the holder might maintain an action against the indorser, without proving a demand upon the administrator at the maturity of the note. Hale v. Burr, 12 Mass. Rep, 86. See also Bayley on Bills, 220. R.

*Philips,*for the motion.

*M’ Grady*& *Caldwell,*contra.