
    Johnson against Haight and Mathews.
    a-notto^al' prom^ssorynoté oafanlTrefusai prored prodadag a?co^ vvltaesa6at' the lh”e origTaa ™21cessaty that no-the migiaai ' should havebeen
    . , 'rt°MdedSofeth¿ ■Sal!charfe0rthé théthifd’ day of fhhd’ dayffails then upod^ lS.d- da\
    THIS was an action of assumpsit, against the • defendants,, as' endorséis of a promissory ’note. ,. The-cause was tried béfore fifr. Justice Yates, at the, Seneca circuit, in June, 1816.
    The note in question was, executed by William Low, dated the 26th of May, 1315, and payable to the defendants, si? months after date, for. 427 dollars and 19 cents. The.plaintiff proved a demand made at the house of the: maker of the note, upon his agent, (the maker being absent,) on the 30th of Nóveme her, next after the date of the note,, and his refusal to pay. • ' , . ^ , The same, witness, who proved the demand and’ refusal, also Pr?ved that he' sent a notice thereof to the defendants by the next after the demand was made, and produced, and offeredjo read, in evidence,'a copy of the, notice which was made at the time ..of- mating the. original. The defendants’ counsel objected to reading the copy, unless notice had been given to °£,produce the original,'but the objection was overruled by the' judge, and the copy-permitted to beread. The plaintiff having-rested his. cause, the counsel for the defendants then moved for a nonsuit, on the ground that, the demand upon the maker of the, note ought to .have been made On the 29 th day of November,' next after the ..date of it; but the judge overruled thfe objection, and. the jury, by his direction) found a. verdict-for the .plaintiff.
    The case was submitted to the court without argument.
   Spencer, J.,

delivered the opinion Of the court."

The first-point maffe by the defendants cannot be maintained; it has been decided in this court, that a notice to produce a paper might be proved by parol. (3 Caines, 174. Turner v. Wilson.) It was held, in Peytonv v. Hallet, (1 Caines, 364.,) that an abandonment in writing might be proved by parol. Another ground, equally decisive, is, that the copy of a notice retained by a witness is to be regarded as a duplicate original, and sueh duplicate is good evidence, without notice to produce the other, (Philips on Evidence, 342.)

On the second point, the defendants are entitled to judgment. The third day of grace fell on the 29 th day of November, and payment was not demanded of the maker until the 30th. The law-is perfectly settled, that a note must be demanded on the third day of grace, unless that falls on Sunday, and then it must be demanded on the second day of grace. (2 Caines, 343. 16 East, 250.) Here there is no excuse for delaying the demand on the maker, and there is a palpable want of due diligence, which discharges the endorser.

Judgment for the defendant.  