
    *Robertson et al. v. Vogle.
    
      Notice of non-payment.
    
    E the holder of a promissory note neglect to give notice, in a reasonable time, to the indorser, of non-payment by the maker, or receive part of the money from the drawer, and give him further time for the balance, the indorser will be discharged.
    What constitutes reasonable notice, is a matter of fact for the jury to determine.
    In this action, the plaintiffs declared, as indorsees, upon a promissory note, against the defendant, as indorser, both the parties residing in the city of Philadelphia. It appeared on the trial, that the note was drawn on the 10th April 1786, and that it was protested for non-payment on the 12th June 1786 ; but on the 5th of July, and on the 23d of August following, the plaintiffs received several partial payments from the maker, without attempting to give notice of the protest to the indorser, until after the last of those payments, when the maker had become greatly embarrassed in his circumstances. Nor was there, indeed, any other evidence of notice, previously to the commencement of the action, to March term 1787, than that the plaintiff’s clerk had frequently called at .the defendant’s store, but was not certain, that he had ever seen him, or left a note of his business.
    
      Ingersoll moved for a nonsuit,
    on two grounds : 1st. Because the receipt of a part of the money from the maker, is a discharge of the indorser for the whole : and 2d. Because the plaintiffs did not give reasonable notice of the protest to the defendant.
    1st. On the first point, he contended, that the indorser of a promissory note is only a warrantor that he will pay the money, if the maker does not; and that if the indorsee receives a part, he takes upon himself to give credit to the maker, and discharges the indorser. Hall v. Pitfield, 1 Wils. 46; s. p. Kellock v. Robinson, 2 Str. 745.
    2d. With respect to the second point, he cited Tindal et al. v. Brown, 1 Term Rep. 167, Easter, 27 Geo. III., where it is said, that when a note is not discharged by the maker, the holder must give reasonable notice to the indorser; that this means something more than making it known ; for it is not enough, that he says the maker has not paid, but he must declare that he does not mean to give credit; and therefore, when the circumstances are ascertained, what is reasonable notice, is a question of law, and not of fact. As to the giving time, the holder does it at his peril, for it has never been determined that the indorser is liable, where the holder has given credit to the maker; so that the want of notice is tantamount to payment. Id. 712.
    
      Sergeant and Barton, for the plaintiffs,
    argued: 1st. That the acceptance of a part shall not prejudice the holder of a bill or note ; Marius 6, 8, 9, 86, 87 ; and, as upon the authority of this book, the court had determined a former question,  they said it could not be shaken, in the present instance, by 1 Wils. 46, which was not a decision in the principal" case, but an obiter dictum, referring to a preceding determination for an argument á fortiori; nor by 2 Str. 745, which was a short nisi prius note. Besides, these reports give no reason for their decisions, but Marius assigns a very satisfactory one for his doctrine; to wit, that it is beneficial to the indorser , that the *holder should receive as much of the money as he can from J the maker, since thereby so much is saved to him. There is a material difference, however, between the principles and usage in London and Amsterdam, and the custom of Philadelphia, upon this, as well as the point of notice; for long indulgence and the course of business, have not yet brought us to the precise and strict practice of those capitals.
    2d. With respect to the second objection, they said, that the plaintiff’s clerk went repeatedly in pursuit of the defendant; and proof of making inquiry after him is sufficient to excuse giving notice, unless he shows that he might have been found. Bull. N. P. 273, 274. But, at all events, they insisted, that what was reasonable notice was a matter of fact, and not of law; 1 Str. 508; 2 Id. 829, 1175; 1 W. Black. 1. For, though it is true, that there are many facts, upon which, if the jury proceed contrary to the opinion of the court, a rehearing will be granted ; yet they must, at last, be determined by a verdict. In trover, for instance, the conversion can only be found by a jury, it cannot be found by the court. That reasonable notice is a fact of the same kind, was conceded by very eminent counsel (Dunning), in opposition to the interest of his client. Doug. 496-7. The propriety of the rule is abundantly more striking here than in England; and as a jury alone can decide upon the circumstances of the country, and the relative situation of the parties, it ought to be left to them to ascertain the reasonableness of the notice.
    
      Ingersoll, in reply,
    said, that the case was of great importance to the mercantile interest; and that the mischief would be fatally extensive, if the adverse arguments prevailed. He contended, however, that in whatever form the plaintiffs choose to proceed, they must fail in their action. For, if they bring their suit at common law, then it cannot be maintained at all; since, at common law, a chose in action is not assignable ; nor is an assignor responsible, unless he expressly warrants; and, if they bring it upon the custom of merchants, then, in order to recover, they must show that they have, on their part, complied with the custom, which required that reasonable notice of the non-payment should have been given to the defendant. 'But, as the common law is not applicable, and the act of assembly does not meddle with the case of indorsers and indorsees, the declaration must undoubtedly be founded upon the statute of Anne, and the custom of merchants; and if the plaintiffs are allowed to take advantage of these to maintain their action (waiving the question whether the statute extends to this country), the defendant cannot be precluded from taking advantage of them,- likewise, to support his defence. Upon this ground, the usage must be universal; for, the statute of Anne places promissory notes on the same footing with inland bills of exchange, and inland bills of exchange, in the preceding reign of Wm. Ill, had been placed on the same footing, with foreign bills — so that any distinction between the cities of Amsterdam and London, and *the city of Phi’adelphia, cannot be maintained; the usage is everywhere the same , and the construction of the statute *■ will not be different, merely from a difference in the place.
    It is settled, by the common law, as well as under the statute, that he who gives a new credit is bound ; this is not contradicted by the doctrine laid down in Marius ; and the case in Lord Raymond is corroborative. In Marius, the money is presumed to be received at the time the note becomes due, the protest is made at the same instant, and notice of the dishonoring is given as soon as possible — so that there, undoubtedly, the indorser is benefited by the indorsee’s taking a part of the money, and runs no risk for the want of information respecting the fate of the bill or note ; but in the present case, the money was received, at least, three months before any attempt to give notice, and in the meantime the maker became insolvent. The court argue in Wilson, as from a fixed principle, that the indorsee’s receipt of a part from the maker is a discharge of the indorser for the whole; and Strange, though a nisi prius report, is in point in all its circumstances.
    He contended, that the case cited in Bull. N. P. was in favor of the defendant, on the second point; for he had shown, that he might easily have been found ; and where the parties reside in the same town, not a moment should elapse between the protest and the notice. 1 T. R. 167. The supreme court, in Steinmetz v. Currie,
      
       said, that in all universal questions of a mercantile nature, the Term Reports were to be received as authority ; this was resolved, in opposition to cases for 100 years back, showing a different practice with respect to notice ; and in Donaldson v. Cooper,
      
       the judges refused to hear the evidence of merchants as to usage, because the point had already been determined. As, therefore, it has been settled, that reasonable notice is a question of law, and not of fact, the plaintiff cannot now bring it into doubt and controversy.
    
      
      
         In Gerard v. La Coste, ante, p. 194.
    
    
      
      
         Post, p. 270.
    
    
      
       See also Henry v. Risk, post, p. 265.
    
   Shippjen, President,

delivered the opinion of the court to the following effect.—

This is a motion for a nonsuit, upon two grounds : first, that the plaintiff, by an acceptance of part of the money from the maker of the note in question, has discharged the indorser; and secondly, that he is also discharged, because due notice of the non-payment of the note was not given to him. It is to be observed, that with regard to discharging the parties to bills of exchange, the law makes a material difference ; for some of them can only be discharged by an express, but others may be discharged by an implied exoneration. Thus, the acceptor of the bill cannot be discharged by any construction in law; and though the holder proceeds against the indorser, and receives part of the money from him, this will not prevent his afterwards resorting to the acceptor for payment of the balance. Dingwall v. Dunster, Doug. 235. In the instance of a promissory note, the maker stands in the place of an acceptor. Johnson v. Kennion, 2 Wils. 263. xqzki But an indorser is only a security that the ^acceptor of the bill, or *255] the maker of the note, shall pay the money ; and therefore, if the holder is guilty of any neglect in endeavoring to recover it, that will certainly bo an implied discharge of the indorser. If, for instance, the holder takes upon himself to give further time for payment, or receives a part of the money, and gives time for the rest, the nature of the transaction is essentially changed, and the indorser is no longer responsible, The same principle applies to the second point; for, if the holder of a note, without giving notice to the indorser of its being dishonored, retains it so long in Ms hands, after the day of payment, as to create a presumption that he means to take upon himself to give a new credit to the maker, the want of notice in this case will likewise operate as a discharge.

This, however, cannot be determined in the same manner here, that it is in England. In that country, regular posts are established, the correspondence between the great commercial towns punctually maintained ; and the communication, throughout the kingdom, is commodious, certain and uninterrupted. These circumstances, therefore, render it easy to make a general rule — of which the cases cited for the defendant from Term Reports, expressly speaks. But in Pennsylvania, there are some roads which the posts never travel, and some seasons in which the communication between the different parts of the state, is exceedingly difficult and precarious: How then can a general rule be made, so as to ascertain everywhere, and at all times, the reasonable time of the notice ? The attempt, if not totally impracticable, would, in its consequences, be dangerous and inconvenient.

But, with regard to the particular case before us, there can be no doubt that the right of indorsees to call upon the indorsers, must be founded upon the custom of merchants : for, the indorsement, considered at common law, amounts only to an assignment of all the proj>erty in the bill or note, without making the assignor responsible, in the event of a non-payment. How far, however, promissory notes are, in this state, upon the same footing with bills of exchange, is a question sub judice in the supreme court ; and therefore, it would be going out of our duty to give a decision upon it at this time. Yet, it must be observed, that the statute of Anne has, in some respects been extended to this country, For the uniform practice has been, to bring actions upon promissory notes, as such ; and not actions of indebitatus assumpsit, which was the proper action, according to the opinion of Holt, Chief Justice, before the passing of that statute. The ■legislature, likewise, when regulating the assignment of bonds and notes, though they did not expressly put them on the same footing with bills of exchange, must, from the terms of the act, have taken it for granted, that an action might be brought upon a promissory note, considered as an instrument. Until, therefore, a contrary decision is pronounced, we must proceed as in the ease of a bill of exchange, under the statute of Anne ; and there it appears, that a very trifling negligence, on the part of the holder, @will rHJ operate as a discharge of the indorser. This rule we admit, is just [*256 and proper, when the course of trade is regular, and the communication by post is uniform and free. For, as it is usual among merchants, to lend their names to one another, all faith and credit would be at an end, if the holder of a note, instead of attempting to procure the payment from the person who ought really to pay it, might, tacitly, keep it in his possession, until the insolvency of the maker had deprived the indorser of his only remedy. If, therefore, he retains it two or three months, or any other unreasonable period, he ought certainly to bear the loss ; and accordingly, the law deems this the giving of a new credit to the maker, and discharges the indorser.

Upon the whole, the facts in the present case are strong in favor of the defendant; but still we should be sorry to take it from the determination of the jury, upon a question respecting the reasonableness of the notice ; for, as it has been already said, it is impossible to establish a general rule, alike applicable to all the parts of the state ; and until such a rule can be established, every case, upon its own circumstances, must be left to the jury, as a question of fact, and not of law.

The jury afterwards gave a verdict for the defendant. 
      
       It has been held, that the indorser is not discharged, by the holder taking from the maker, a mortgage, of the same date with the note, as collateral security for payment of the note. Ligget v. Bank of Pennsylvania, 7 S. & R. 218.
     
      
       In the case of McCullough v. Houston, post, p. 444.
     
      
       Stat. 3 & 4 Anne, c. 9; “The 1st, 3d, 4th and 8th sections of this statuto are in force.” Report of the Judges of the Supreme Court.
     
      
       See the note to Steinmetz v. Curry, note, p. 234. The determination of President Shippen, in this case, to leave the question of the reasonableness of the notice to the jury, as a question of fact, was adopted by the supreme court in several subsequent decisions. See Mallory v. Kirwan, 2 Dall. 192; Warder v. Carson’s Ex’rs, Id. 233; s. c. 1 Yeates, 531; Bank N. A. v. Pettit, 4 Dall. 129; Ball v. Dennison, Id. 165. In the-last reported case on this subject, however, Gurley v. Gettysburg Bank, 7 S. & R. 324; C. J. Tilghman, after quoting with approbation a remark of C. J. McKean, in Warder v. Carson, 1 Yeates 531; that a distinction exists between notes discounted by the banks in Philadelphia, and in the country, in this respect, observes of the former, that “there will be little difficulty, when a case occurs, in settling the law withregard to them.” “ But,” he adds, “ I am satisfied, that an attempt to lay down any general rule, at this time, applicable to all notes discounted in the country banks, would be unjust and dangerous. . . . And as to individuals in the country, who hold indorsed notes, never discounted by any bank, I am well assured, that there is no general understanding of any particular time of giving notice.”
      
     
      
       It is now well settled, that what is due notice of non-payment of a promissory note, so as to charge the indorser, when the facts are undisputed, is a question of law for the court, and not one of fact for the jury. Stockert v. Anderson, 3 Whart. 116; Jones v. Wardel, 6 W. & S. 399; Brenzer v. Wightman, 7 Id. 264; Holz v. Brown, 5 Penn. St. 178; Sherer v. Easton Bank, 33 Id. 134. So, as to what is due diligence in making a demand upon the maker. Bennett v. Young, 18 Id. 261; Smith v. Fisher, 24 Id. 222.
     