
    Executrix of Thomas Price v. William P. Young.
    
    Where the maker of a promissory note dies, the holder is not, thereby, excused from making use of due diligence to receive payment, of his representatives; and he ought, at least, to search the proper offices of the district, to ascertain who are the representatives; and if it do not appear there, then a demand at the accustomed dwelling of the make? (before his death) is necessary and sufficient.
    And notice of non-payment should be given the endorser, within a reasonable time..
    This was an action against the defendant, as endorser of a promissory note, given by Lewis Bryer to Thomas Price, deceased, payable 26th October, 1816. The haudwritin'g of the endorser was admitted. The plaintiff called a witness, who testified, that Price, the payee, died in June-, 1816, and Bryer, the maker, in September following. That the witness, as agent of the plaintiff, early in November following, demanded payment of the defendant, who told him the note had been paid. There was, salso, some evidence, that the maker was insolvent. The plaintiff resided on James’ Island, a few miles from Charleston, and the defendant in Charleston.
    The case was tried before Mr. Justice Johnson, at Charleston, in May Term, 1818, and a verdict found for the plaintiff. This was a motion for a new trial, on the grounds :
    was no proof of a demand of payment *of the representatives of the drawer, nor of any circumstance which would dispense with a demand.
    2. That the notice to the endorser was not in time.
    
      
      Axson, for the motion. E. A. Be Saussure, contra.
    
      
       S. C. again, 1 McC. 340.
    
   The opinion of the Court was delivered by

Cheves, J.

It was contended, that the death of the maker having been proven, the fact dispensed with proof óf a demand, unless it had been proven by the defendant, that the maker had a legal representative. That to require proof of the plaintiff, that there was not a representative, was to require him to prove a negative. That it would, at least, oblige him to search, and to draw testimony from the proper offices of every district in the State, and that, therefore, the onus probandi, on this point, lay on the defendant. But it was correctly replied, that such proof was not required, but that the law required proof of some efforts to make this demand. Thus, if the proper offices of the district, in which the maker lived, had been searched, and it did not appear frpm them 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 necessaryor proof that he was a transient person, or the like, might have been sufficient; but no such proof was given. This ground, I think, therefore, sustained.

2d. It was necessary, also, that notice of the failure of payment, by the maker, or his representatives, should have been given to the indorser, within reasonable time : and that reasonable time thé law has fixed to be as soon as shall be conveniently practicable. The note was due the 26th October, and notice was not given till early in November. Proof of notice, in general, ought to be more definite than this, and to fix with precision the day when it was given. But it is enough to say, that in this case, considering how near to each other the parties resided, it was too late. If the proof of insolvency had been much more *satisfactory, it would not have dispensed with notice. 1 Selwyn, 353.

On both grounds, therefore, I am of opinion á new trial ought to be granted.

Colcook and Richardson, JJ., concurred. 
      
       Rice, 191.
     
      
      
        4 McC. 503; 2 Bail. 457, note.
     
      
       Post. 468; 1 McC. 340; Rice, 244; 2 Rich. 339.
     
      
       2 N. & McC. 285; Harp. 267; 2 Bail. 460.
     