not conceive how this can be matter of law. I can understand that the law should require due diligence; but that it should be laid down that the notice must be given that day, or the next, or at any precise time, under whatever circumstances, is, I own, beyond my comprehension. I should rather have conceived that, whether due diligence had or had not been used, was a question for the jury to consider, under all the circumstances, of accident, necessity, and the like;" but added, that when the case went down to trial again, he should advise the jury to find a special verdict, by which it would still be made a question of law.

He expressed a similar doubt in Hopes v. Alder, in 1800, 6 East, 16, in notes. "He did not see the sense of the rule in Tindal v. Brown; whether reasonable notice have or have not been given, must depend on the circumstances of the case of which the jury will judge." This point was much considered in Darbishire v. Parker, in 1805, Id. 2, where Lord Ellenborough admitted the difficulty in laying down any certain time, within which notice must at all events be given, and thought that a proper case to be considered by another jury. A verdict having been found for the plaintiff, under his instructions, regarding the question. of reasonable notice as one compounded of law and fact, he had left it to the jury. The other judges seemed rather to regard it as a question of law, and the rule for a new trial was made absolute. Le Blanc, J., said: "It is unnecessary to determine the general question; but whenever that shall arise, the court will have to consider whether reasonable notice be a question of fact or of law. In Tindal v. Brown, and in Metcalf v. Hall,' it was considered a question of law, but dependent on facts. If the general rule be, that the holder is to send notice by the next post, and he fail to do so, it is for him to show an excuse for the omission; as, that he lived too far from the post-office, or that the post departed again too soon, or that he was unavoidably engaged in other business, which prevented him from writing by the next post; and then the jury will have to consider the validity of such excuse, in point of fact, for his non-compliance with the rule of law. I think this is the true view of the subject, whether the question of demand and reasonable notice be questions of fact or law, or partly of both. It is certain that the verdicts of juries, and the determinations of courts, have established some general rules, as that the holder of a note or bill must demand payment of the maker or acceptor, when it be

1. Bull. N. P. 275.

comes payable, and must give notice to the party intended to be charged, the next day, where the parties live in the same town, or by the next post, if at different places. It is obvious, therefore, that in the case before the court, the demand of payment was not made in due time of the maker, and that due notice of non-payment was not given to the defendant. The rules in relation to presentment for acceptance and for payment are the same, as well as those relating to the notice which may be necessary in either case, and if they have not been complied with, it is for the plaintiff to show a valid excuse for the omission.

The note was payable on the fifteenth of May, and Timmons died on the eleventh. The note being locked up in his desk at the bank, was not delivered until the eighth of June, when the demand was made and notice given. His honor, the recorder, thought that no laches could be imputed to the plaintiff, and gave judgment for her. The defendant might have claimed a jury, and submitted the question to them; not having done so, the case is the same as if the jury had found a verdict for the plaintiff, on the same facts, under proper instructions, and we ▼ere called on to set aside the judgment as against law. In the opinion of the court, the case would have been a very proper one for the jury, and there is no sufficient reason to be dissatisfied with the judgment of the recorder. If we were to consider the question here as one of law, to be decided by the court, as on a special verdict, we should come to the same conclusion. Timmons, the agent of the plaintiff, who resided in a distant state, became sick and died, four days before the note became payable. Had the note been discovered, or been actually in the hands of his widow and executrix, she was under no obligation, and had no authority to make the demand, or give the notice. The agency of her husband was a personal trust, which did not pass to the executrix, and there is no ground for imputing negligence, unless we hold that Timmons, in the moment of his last illness, should have had the foresight to place the note in the hands of a notary. But a protest was not necessary, and any other person engaged to make the demand would have done as well. Under such circumstances, would Timmons have been liable even to the plaintiff, or would his executrix have been for not taking steps beforehand, while lying at the point of death, to have the demand made and notice given? I should think not; and I do not therefore perceive how the plaintiff can have laches imputed to her, when she was several hundred miles distant, and not only ignorant of the facts, but could not by the ordinary course of

the mail, have been informed of them earlier than the notice was actually given. It is one of those cases of accident, of unforeseen calamity, which may well come within the maxim, actus Dei nemine facit injuriam; and which Lord Kenyon, in Hilton v. Shepard, thought was very proper to be left to the jury to consider.

The political state of the country, at the place and time of a bill's becoming due-as, a declaration of war, which rendered it impossible to present it for acceptance, was held a valid excuse for the omission, it being afterwards presented as soon as practicable: 2 Smith, 223;' Chit. on Bills, 319. And in New York the prevalence of the yellow fever in the city, where the parties lived, was held a sufficient excuse for not giving notice of nonpayment, from September until November, there being a total cessation of all business: 2 John. Cas.'

The judgment of the recorder is affirmed.

GANTT, O'NEALL, BUTLER, and RICHARDSON, JJ., concurred.

DUE DILIGENCE IS A QUESTION OF FACT, usually, for a jury under proper instructions to determine: Nichol v. Bale, 27 Am. Dec. 505; Mohawk Bank v. Broderick, Id. 192. For a full review of the authorities upon this question see note to Aymer v. Beers, 17 Id. 547.

NOTICE SUFFICIENT TO CHARGE INDORSER: Nichol v. Bate, 27 Am. Dec. 505, and note.

NOTICE OF NON-PAYMENT IS EXCUSED by the prevalence of a malignant pestilence at the residence of the indorser, to the existence of which the neglect was due: Tunno v. Lague, 1 Am. Dec. 141. Sickness of payee is an excuse for delay: Aymer v. Beers, 17 Id. 538. Insolvency of maker does not excuse want of notice, where it is sought to charge indorser: Page v. Loud, 18 Id. 650.

SMITH V. BYTHEWOOD.

[RICE'S LAW, 245.]

NOTE PAYABLE on Demand becomes due from its date.

NO EXPRESS DEMAND IS NECESSARY, prior to commencing an action upon a note payable on demand.

STATUTE OF LIMITATIONS OPERATES UPON A NOTE PAYABLE ON DEMAND from the day of its date.

NOTE HAVING No Date, payable on demand, becomes due upon its delivery.

ASSUMPSIT. Action upon a due bill, without a date, payable to bearer on demand. This action was commenced in 1837; the proof showed the due bill sued upon to have been made before

1. Patience v. Townley.

2. Tunno v. Lague, 1 Am. Dec. 141.

1831

Plea, the statute of limitations. Judgment for plaintiff. Motion for new trial.

De Treville, for the motion.

Martin, contra.

By Court, EVANS, J. In relation to notes payable on demand, it is well settled, the maker is bound to pay immediately, he is not even entitled to days of grace. The holder may sue on the same day the note is made. A demand by his writ is sufficient. Whenever the plaintiff may sue the defendant, a cause of action has accrued to him, and from that time the statute of limitations begins to run. The case is not like that of sheriffs and other agents, who are not in default until they refuse to pay the money, and consequently the statute does not begin to run until after demand. But it is unnecessary to discuss this question, as it is conceded to be the settled law both of England and of this state, that the statute of limitations commences to run from the date of a note payable on demand. This was decided by the appeal court at Columbia, a few years ago, in a case, the name of which I have been unable to ascertain. It was contended in this case, that as this note is without date, it should be governed by a different rule. I do not perceive any reason for this distinction. A note, like a deed, is nothing until it is delivered. Its legal efficacy as a contract, commences with delivery, and the maker is bound to pay immediately. It follows from this, that if no action be brought within four years after the note has beer delivered, the statute of limitations is a bar to the action. motion for a new trial is therefore granted.

The

GANTT and BUTLER, JJ., concurred. Earle, J., absent at the hearing, but concurred in the judgment.

ON NOTES PAYABLE ON DEMAND the statute of limitations runs from their date and not from the day of actual demand: Wenman v. Mohawk Ins. Co., 28 Am. Dec. 464, in the note to which the cases in this series to the effect stated above are cited.

MCMILLAN v. UNION INSURANCE COMPANY.

[RICE'S LAW, 248.]

IMPLIED WARRANTY OF SEAWORTHINESS in contract of marine insurance does not include the employment of a pilot, at a particular part of the voyage in which pilots are usually required, in order to charge the in

surers

INSURERS OF A VESSEL OR CARGO ARE LIABLE, though no pilot was em.

ployed, for a loss which occurred after the particular place at which the aid of a pilot was desirable had been passed in safety.

Loss OCCASIONED BY NEGLECT TO EMPLOY A PILOT, discharges the insurers when the loss was a direct and immediate consequence of the neglect, but not otherwise.

ACTION on a policy of insurance. The goods insured were on board the ship Minerva, Thorndyke master. The vessel, cargo, crew, and passengers were lost in a gale, which prevailed at the time of the clearance of the ship for sea. On the day of sailing the master engaged a pilot to accompany him, but when the hour appointed arrived, the weather having become threatening, the pilot declined to go. The master, who, it seems, believed that the force of the storm had become exhausted, and anxious to profit by the direction of the wind then blowing, sailed, during the afternoon, without a pilot. The wind was fair at the time, but shortly after changed its direction, and blew a hurricane. A number of pilots were examined as witnesses, all of whom agreed, that it was imprudent to go to sea in the weather then prevailing. One witness, keeper of a lighthouse, saw the ship, and testified that she was five or ten miles beyond the bar at the time. This was the last seen of her until the wreck was discovered. The pilots who saw the Minerva going out, believed that she struck on the bar. The captain and officers of the ship which discovered the wreck, agreed in saying that, from the position of the wreck, the Minerva was not injured while crossing the bar, but was capsized in the gale. Verdict and judgment for plaintiff. Defendant now moves for a new trial.

Hunt and Memminger, for the motion.

Petigru, contra.

By Court, O'NEALL, J. The facts of this case have been passed upon by a jury, and they have found that the Minerva was uninjured in crossing the bar of the harbor of Charleston, and that she was subsequently capsized in the gale. That there were many facts justifying this conclusion, can not be denied. It was my own opinion formed at the trial, but withheld as much as possible from the jury. Under such circumstances, it would, according to our settled rules, be in vain to talk about a new trial on the facts. The only question which remains is, whether the fact of sailing from a harbor, where it is customary to take a pilot, without one, discharged the underwriters. The cases cited in the report, show very fully that if the vessel had been lost, in

AM. DEC. VOL. XXXIII-8