
    *William Davis v. Samuel P. Herrick.
    In a suit by an indorser against tbe maker of a promissory note, the question of due diligence, where the facts are not disputed, is one of law to be decided by the court.
    Where the facts are contested, the question of law becomes mixed with fact, and is for the decision of the jury, under instructions from the court, upon the hypothetical state of facts claimed to be proved.
    As to negotiable paper strictly commercial, such as that on its face negotiable at banks, the act of Ohio, of 1820, makes no change in the rule of the law-merchant.
    A demand of the maker of a negotiable note, and notice on the ninth day after the note arrived at maturity, is not the use of due diligence to charge an indorser.
    From Muskingum. Assumpsit by the plaintiff as holder and indorsee of the defendant of a promissory note, payable on April-10, 1832, made by one Wall. Plea, non assumpsit.
    
    During the progress of the trial on the circuit, the following-facts appeared in evidence in reference to the demand of the maker and notice to the indorser, to wit: That Wall resided in Zanesville. He left there with a drove of horses for an eastern market in February, 1832, expecting to return in six or eight weeks, (before the note fell due), but has never returned. Upon the day the note was payable, or the day after, the plaintiff’s servant, by his direction, inquired at Wall’s house if he was at home, and was informed by the family he had not returned, but would be home in the course of the week. Six days after the note fell due, the servant made a similar inquiry, and received for answer that Wall had not arrived, but would be home that week or the following one. The eighth day after the note fell due, the servant again called at Wall’s house, but neither he nor his wife were at home. On the next day the inquiry was renewed at Wall’s house, when his wife replied that he had not yet got home. The servant then presented the note to the wife and demanded payment, which being refused, it was on the same day presented to the defendant for payment, with information that Wall could not be found. The defendant refused to pay or take up the note, remarking that Wall would be .at home in three or four weeks and pay it. It appeared also that one Ballentine, a citizen of Zanesville, being in Philadelphia when Wall was there, became suspicious he would not return home. About the 1st of April, Ballentine mentioned this subject to the sheriff of the county, and the sheriff, on the 2d of April, communicated these suspicions to the defendant. Upon this state of fact, two questions were made to the court, whether the plaintiff, under the circumstances, had used due diligence, under the statute, so as 56] to entitle him to recover of the Endorser, and whether the question of diligence was for the court or jury? The court decided that what constituted due diligence was a question of law for the court, and instructed the jury that the demand and refusal in the case did not make out the due diligence upon which the plaintiff’s right to recover depended, and, therefore, they ought to find for the defendant. A verdict was so returned.
    The plaintiff moves for a- new trial, “ because the court erred in charging the jury that due diligence had not been used to charge the indorser.”
    Goddard and Converse, for the motion, contended:
    1. That the statute of Ohio has materially altered the commercial rule as to the steps necessary to charge an indorser of a promissory note.
    2. That under that statute the question of diligence is a question of fact to be determined by the jury.
    3. That due diligence has been used in this case. The consideration of this point will, of course, be unnecessary, if the two first be established in our favor.
    1. As to the change effected by our statute.
    Section 2 of the “ act making certain instruments of writing negotiable,” passed February 25, 1820 (vol. xxix, 217), provides that the indorsee may sue the indorser, “ having first used due diligence to obtain the money of the maker.”
    Section 5 provides, “ if any indorsee of a note made negotiable by this act, on trial of any suit instituted thereon, against any indorser, shall prove a demand made of the maker, at the time the «ame became due, or within a reasonable time thereafter, it shall be adjudged due diligence under section 2 of this act.”
    Under the act of January 25,1810 (1 Chase’s Ohio Stat. 660), it might have been contended that the commercial rule was not altered, that statute requiring an indorsee to use due diligence, but not attempting to define in what that due diligence consisted.
    Under the act of 1810, we are willing to permit our opponents to contend that an indorser is not liable, unless payment be demanded, of the maker on the day the note becomes due, and notice of non-payment be given to the indorser on that day or the day following.
    That is the commercial rule.
    
      “ A bill or note must be presented for payment on the very *day on which it becomes due.” Bayley on Bills, 149, chap. [57 '7, sec. 1, Boston ed. 1826.
    “In this country (England), upon the last day of grace, and within a reasonable time before the expiration of that day, a bill or note must be presented for payment.” Bayley on Bills, 153.
    So Marshall, Chief Justice, in the case of Lenox et al. v. Roberts, 2 Wheat. 373, “It is the opinion of the court that the demand should be made on the last day of grace.”
    So in New York, Johnson v. Haight and Matthews, 13 Johns. 470, by Spencer, Judge, in delivering the opinion of the court: “ The law is perfectly settled that a note must be demanded on the third day of grace, unless that day falls on Sunday, and then it must be demanded on the second day of grace.”
    But the statute of 1820 changed all this. When the legislature say that demand may be made on the day the note becomes due, or within a reasonable time thereafter, have they not changed the commercial rule which says the demand must be made on the very day the note becomes due ?
    The commercial rule says, demand within a reasonable time after the note becomes due, and you shall not recover. The statute of Ohio says, demand within a reasonable time after the note becomes due, and you shall recover.
    With respect to the time within which demand must be made, the statute has, then, materially changed the commercial law. Has it not changed it also in another important particular, by its entire silence as to notice to the indorser ? The legislature has prescribed the condition upon which an indorser shall be hold liable. They require the holder of the note to do a certain act to entitle him to recover. Can the court superadd the obligation of giving notice of that act?
    It may seem bold to question the necessity of giving notice after twenty or thirty years acquiescence in the practice; but yielding to the legislature the perfect right to mold at will commercial as well as common law, it is not easy to perceive how the right of an indorser to notice has arisen. Under the act of 1810, the courts may have thought that notice formed a part of the diligence which that statute left undefined; but. under the statute of 1820, which exercises the undoubted prerogative of defining its own-terms, room is not left for such construction. 58] *2. Our second position, that due diligence is a question of fact, not of law, is almost a corollary from the first.
    Demand of payment may be made within a reasonable time after the note becomes due. What is a reasonable time? This depends-upon the circumstances of each case. It is matter of proof. The statute says it shall be proved.
    “ What constitutes reasonable notice to an indorser is matter of fact for the jury to determine.” Robertson v. Vogle, 1 Dall. 255, 256 ; Mallery v. Kirwan, 2 Dall. 192; Warden v. Carlow’s Ex’r, 2 Dall. 233; 1 Yeates, 531; Ball v. Dennison, 4 Dall. 165; Bank of North America v. Petit, 4 Dall. 129.
    In Alabama, it is a question for the jury. 1 Minor, 85.
    In New Jersey, it is doubted whether the question of diligence-be for the court or jury. Ferris v. Saxton, 1 South. 1.
    In New York, it is a question for the court.
    We contend that the legislature of Ohio, having in view these contrary decisions, and the many difficulties attending this vexed question, have, by relaxing the commercial rule and authorizing a recovery when demand has been made within a reasonable time, left each case to be determined upon its own facts.
    In this the legislature have said nothing more with respect to-all notes and bills than the commercial law itself has said with respect to bills of a particular character — we mean those payable a certain number of days after sight. The drawer of such a bill is discharged unless the bill be presented for acceptance within a reasonable time, and that reasonable time is a question for the jury. We cite the language of Judge Story, one of the ablest expounders of commercial law, in Wallace v. Angry et al., 4 Mason, 345: “But the principal objection is, that there has been gross negligence in the remittance of the bill, and that this would at all events discharge the drawer. There is a difference between the case of a bill of exchange, drawn payable at so many days after date, and one drawn payable so many days after sight. In the former case the bill must be presented by the period of its maturity ; in the latter, it is sufficient if it be presented in a reasonable time. What that reasonable time is, depends upon the circumstances of each particular case, and no definite rule has as yet been laid down, or indeed can be laid down, to govern all cases. The question is a question of fact for the jury, and not of law for the abstract decision of the court.” A slight paraphrase of this language will illustrate the position for which we are now contending: “ There *is a difference as to the duties of a holder [59 of a promissory note between the commercial law and the statute of Ohio. Under the former code, the note must be presented by the period of its maturity; under the latter, it is sufficient if it be presented in a reasonable time. What that reasonable time is, depends upon the circumstances of each particular case, and no definite rule has as yet been laid down, or indeed can be laid down, to govern all cases. The question is a question of fact for the jury, and not of law for the abstract decision of the court.”
    In the case of Grist v. Lybrand, 3 Ohio, 307, an attempt was made to withdraw this question from the jury by objections to testimony. The court admitted the testimony, and refused a new trial. The last ten lines of the opinion of the court (page 320) is entirely inconsistent with the claim now set up, that diligence or no diligence is. a question for the court.
    3. Due diligence has been used.
    The statute of Ohio does not leave us to grope in the dark as to what shall be due diligence. It defines it. If to the demand, within a reasonable time, as there expressed, we must add an implied obligation upon the holder to give notice to the indorser, we may surely claim the indulgence (in analogy to the expression used by the legislature) of giving that notice in a reasonable time. If the legislature have so far relaxed the law-merchant as to substitute a reasonable time for demand, in lieu of the very day, may we not claim that they have substituted a reasonable time for giving notice, in lieu of the very day, or the day following ?
    
      If the statute had specified notice as a duty of the holder, we may suppose section 5 would read as follows: “ If any indorsee, etc., shall prove a demand made of the maker at the time the note became due, or within a reasonable time thereafter, and shall also prove that within a reasonable time after such demand he gave notice thereof to the indorser, it shall be adjudged due diligence,” etc. We suppose that the counsel for the defendant read the statute in that way, and we proceed to argue this question of diligence as though that were its express language.
    No one, we presume, will contend but that a want of demand and notice may, under some circumstances, be excused. If a notice be put in the post-office, directed to the indorser, at his 60] usual place of residence, though the mail be robbed, and *he never receive notice in fact, he will still be chargeable. If the note be drawn for the accommodation of the maker, and the indorser be fully indemnified, he will be chargeable, though no demand and notice. If, the day before the note falls due, the indorser tells the holder that he need make no demand or give notice, he is liable without demand and notice. We cite these instances to show that a literal compliance with the statute is not required. To comply with it substantially, to fulfill its object and spirit, is all that is required. This position might be illustrated by reference to other statutes and the construction given them by the courts. But to proceed. This note, allowing days of grace, fell due on the 13th of April. On the 19th a regular demand was made of the maker’s wife, and regular notice given. Can the court say that six days is an unreasonable time ? Bub under what circumstances did the note fall due? We prove that just before the note became due the maker had absconded to defraud his creditors, and that the defendant knew it. Why, then, make a demand at all ? No demand could be made of the defendant personally. Should we demand it of his wife at his last place of residence? Why? Is it usual for a man who absconds for the purpose of avoiding the payment of his debts to leave money with his wife and family to pay those debts ?
    It is evident that the demand would have been an idle, useless beremony, which the law never requires to be done. Our position is this: that demand on Wall was unnecessary, and that if, without going near his house, the plaintiff had, upon the 14th day of April, notified the defendant that Wall had absconded, and that the note remained unpaid, we should have been entitled to recover upon the strict mercantile law. Putnam v. Sullivan, 4 Mass. 45.
    Suit by indorsee against indorser of a promissory note, dated December 1, 1804, payable in ninety days with grace. By the law of Massachusetts that note fell due on the 3d day of March. The note being left in the Boston Bank for .collection, notice was left at the lodgings of the promisor, by the messenger of the bank, on February 28, 1805, and on the 3d of March following the defendant was notified that the note was unpaid. It was also in evidence that the promisor had absconded before the note fell due, and that this fact was known to all the parties at the time. In this case the only demand was made before the note became due, and was a mere nullity, *and is so treated by the court. Upon these [61 facts the court says (and it is the great Parsons who speaks) : “It appears that before the note became due the promisor had absconded ; this was known to the parties, and when the note was payable he was not to be found. The condition on which the indorser of a note is holden is, that the indorsee shall present the note to the promisor when due, and demand payment of it, if it can be done by using due diligence. Now, it appears that when the note in this case was due it could not be presented to the promisor for payment, and that there was no neglect in the indorsees. We are all, therefore, satisfied that the indorsers are holden on their indorsement in this case, notwithstanding there was no demand on the promisor.” See also Duncan v. McCullough, 4 Serg. & Rawle, 480; Gist v. Lybrand, 3 Ohio, 307.
    Having, we think, disposed of this part of the diligence incumbent on the plaintiff, namely, the demand, it only remains to inquire : Had the defendant sufficient notice ?
    An indorser is entitled to notice, say the books. Notice of what? That the note has not been paid. But the defendant knew everything which he could communicate to him by notice, and we say, therefore, that notice was unnecessary. Upon this point, we ask to be excused lor again pressing upon the court, that notice'is not required by express legislative enactment, though the legislature have acted upon the very subject. May we not ask the tribunal which imposes upon us the necessity of notice, to give to their rule that reasonable interpretation which would dispense with the notice, when it evidently would have communicated nothing new to the defendant.
    
      R. Stillwell, contra, argued as follows :
    It is not readily discovered, from the plaintiff’s argument, whether he relies on the demand at the house of Wall, and notice given to the defendant on the 19th of April, or on the absconding of Wall; it will, therefore, be necessary for the defendant to examine both points.
    And he contends, that in this case, the statute has not altered the commercial rule, as to the steps necessary to charge an indorser on a promissory note. It is certaintly a bold step, as the counsel for the plaintiff remarks, to question the necessity o'f notice. So long 62] a practice under the law, the universal consent *of the profession and men of business generally, and the practice of the courts under this law, would seem to have settled the point. It is not, however, necessary to discuss, in this case, the question made by plaintiff, whether notice of demand or non-payment is necessary to charge an indorser. The question then is, where all the parties reside in the same town, and are all traders, is a demand, on the sixth day after the last day of grace, sufficient to charge an indorser? By the commercial rule, it clearly is not;' and the defendant contends, that the words “ reasonable time thereafter,” mentioned in the statute, applies only to cases where there are peculiar circumstances in the case, which dispenses with the strict rule ; and that it was not intended to apply to cases where the holder might as readily have made the demand on the day the note became due as on any subsequent day; and that a correct paraphrase of the statute would be: “ In cases where the holder, by the use of reasonable care and diligence, could not make the demand on the day the note became due, he should be entitled to recover, if he use reasonable care and diligence to make a demand within a reasonable time thereafter.” This is certainly giving as favorable a construction to the statute as the plaintiff can require. Was there anything to prevent the plaintiff, in this case, from making the demand on the day the note became due? Was there anything to prevent him from making the demand on the next day ? By the use of the words “ on the day the note falls due,” the statute certainly contemplates that the demand should be made on that day, unless there are circumstances to excuse it. So far from there being anything to prevent the demand, on the 10th or 11th of April, and again on the 16th, the plaintiff sent to the house of Wall to inquire about the note, and received such information as seems to have satisfied him that Wall would pay the note, and he was willing to rely on Wall alone. Having taken this course, he can not, on the failure of these expectations, turn round, after so great a lapse of time, and throw the loss on the defendant.
    The defendant contends, that the plaintiff can not recover on the ground of the absconding of Wall; because notice, if given at all, was not given within the time required. It would appear from the testimony, that on the 19th of April, the defendant gave notice of the demand and not of the absconding, and did not then claim to hold the defendant on the ground of Wall’s obsconding. Admitting that if given in time, the ^notice on the 19th [68 was sufficient to charge the defendant, on the ground of absconding, yet it was not given within the time required. I presume it will not be contended, that the holder of a note is not bound to give notice to the indorser, when he seeks to charge him, on the ground of the maker absconding. By the very strict construction of the statute, urged by plaintiff, it might be argued that the plaintiff could not recover in any case, without a demand of the maker. But we do not so contend, but admit that the absconding of the maker dispenses with a demand. But where the holder asks to recover, on the commercial rule, independent of the statute, he must bring himself within the rule, and that notice of the absconding of the maker and of the non-payment must be given to the indorser within a reasonable time. That is, where no peculiar circumstances intervene on the day the note becomes due, or the next day. There was nothing to prevent giving this notice immediately; the defendant lived in the same town. Should it be suggested that the plaintiff was not aware of the absconding of Wall, I reply that then he is not excused from making the demand at the house of Wall.
    It has not been held, in any case, that the absconding of the maker dispenses with notice to the indorser. In the ease cited by plaintiff, 4 Mass. 45, notice was given to the indorser that the note was unpaid.
    Known insolvency of the maker would furnish as strong ground to dispense with notice as absconding, yet known insolvency does not dispense with notice. The death, bankruptcy, or known insolvency of the drawer, or his being in prison, constitute no .excuse, either at law or in equity, for the neglect to give due notice of non-acceptance or non-payment. Russell v. Langstaff, Doug. 497, 515; Eisdale v. Sowerly, 11 East, 114; ex parte Wilson, 11 Ves. 412; Whitfield v. Savage, 2 Bos. & Pul. 279; Thackary v. Blarket, 3 Camp. 165; Haynes v. Borks, 3 Bos. & Pul. 601; Edwards v. Thayer, 2 Bay. 217; Pierce v. Young, 1 Nott & McCord, 438; Clair v. Barr, 2 Marsh. 256. There are numerous other casos which might be referred to, but these are presumed to be sufficient. It is not competent to the holder to prove that the delay in giving notice has not in fact been prejudicial. Eisdale v. Sowerly, and Russell v. Langstaff, ut supra; Bickerdike v. Bollman, 1 Term, 408; De Berdt v. Atkinson, 2 H. Black. 336; Warrington 64] *v. Furbor, 8 East, 24-5-247; Cory v. Scott, 3 B. & A. 623; Nicholson v. Gouthit, 2 H. Black. 612.
    Nor will the circumstance that the drawer had informed the drawee before the bill became due that it would not be paid, excuse notice. Nicholson v. Gouthit, 2 H. Black. 612; Eisdale w. Sowerly, 11 East, 117.
    It may also be observed that there is no evidence of the fact that the defendant knew that Wall had absconded at the time the note became due, or even as late as the 19th of April. Wall had not been absent an unreasonable time. All the suspicion that existed arose from the statement of Ballentine, who did not himself think it sufficiently certain to act upon. The family of Wall stated that they expected him to return. The plaintiff, by his frequently sending to inquire, and on the 19th of April making a demand of payment, showed that he did not at that time consider Wall as having absconded, and that he relied on this demand and notice of non-payment as the circumstance on which to charge the defendant. The defendant, also, when notified of the demand and non-payment, entertained the opinion- that Wall had not absconded. It would be unreasonable, then, to charge the defendant with the knowledge of the absconding on the 13th of April (admitting that this would charge him), when all the parties expected him to return as late as the 19th of April;
    Under these circumstances, it was the duty of the plaintiff to make demand at the house of Wall at the time the note became due. Pierce v. Young, 1 McCord, 339. Admitting that defendant had notice of the absconding of Wall, and non-payment of the note, it was not given by plaintiff or any person interested in the note. The earliest eases held that a notice of the dishonor of a note would not charge the indorser, unless given by the holder or his agent. Tindal v. Brown, 1 Term, 170. The rule, however, has-been relaxed, and it is now sufficient if given by any party to the bill or note. But it has never- been suggested that notice from a stranger is of any avail. Due diligence is matter of law for the-court. It is unnecessary to go into the reason of this rule; it is so perfectly obvious that if left to the jury in each case, there would be no rule, and the decision would be variant in every case. It is matter of little moment to the community in what manner the rule is settled, but of great moment that it should be settled. By considering it as matter of law, the rule is fixed and determinate in each *case. By submitting to a jury, each case must [65 depend on the ignorance or caprice of the jurors. After much discussion and examination, the rule was finally established in England that it is matter of law. Tindal v. Brown, 1 Term, 168;. Derbyshire v. Parker, 6 East, 3, 9, 10, 12; Haynes v. Brooks, ut supra. Although the cases cited for the plaintiff from Pennsylvania differ from this rule, yet in that state the law is now otherwise settled. McKean, Chief Judge, in delivering his opinion in the case of Bank of North America v. McKnight, 1 Yeates, 145,, states the law as it is now settled to be, that due diligence is matter of law. So in New York, as stated in plaintiff’s argument. So in Massachusetts, Hussey v. Freeman, 10 Mass. 84. So in Kentucky, Doge v. Bank of Kentucky, 2 Marsh. 616. So in Maryland, Philips v. McCurdy, 1 Har. & J. 187. So in New Hampshire, Haddock v. Murray, Adams, 140. So in Vermont, Nash v. Harrington, 2 Aik. 9. And this is nothing more than the power the-court possesses in all civil cases.
    The jury find the facts, and the court determine the law from those facts. In this case, there was no dispute as to the facts, at the time of the trial; the defendant examined no witnesses, and admitted all the testimony to be true. It is argued by the plaintiff, that the words “reasonable time thereafter,” in the statute, were intended to withdraw the question of due diligence from the court. This is not correct. Where the last indorser receives notice from the holder that a bill or note is dishonored, in order to charge a prior indorser, he is bound to give notice as soon as he reasonably can. Now, if this argument of the plaintiff were correct, this reasonable time would be a question for the jury. But according to the cases collected in the ease of Derbyshire v. Parker* 6 East, 6, 9, 12, it is a question of law depending nevertheless on the circumstances of each case.
    We contend that the words “ reasonable time ” shall receive the .same construction in both cases.
    Goddard, in reply:
    The evidence is, that the defendant, before the note became due, knew that Wall had absconded in fraud of his creditors; and knowing this, he knew a demand of payment would be unavailing, and he knew all that notice from the holder of the note could communicate to him.
    The demand has then been made, in the language of the statute, “within a reasonable time;” that is,- the demand and notice were 66] just as beneficial to the defendant as they would have *been if demand had been made and notice given at an earlier period.
   Judge Wright

delivered the opinion of the court:

We are unanimously of opinion that there was no error in the charge of the court. The question of diligence is one of law, and for the court in all cases where the facts are ascertained. When the facts are contested, the legal question is mixed with the facts, .and goes to the jury under instructions from the court, upon the law arising upon the various hypothetical state of facts claimed to be made out in evidence. On the trial of this case there was no dispute about the facts; they were conceded, and we all think, with the judge who gave the cause to the jury, that the circumstances in proof did not establish the use of that diligence required by law of an indorsee of a note to enable him to recover of an indorser, nor excuse the omission.

Section 5 of the act of 1820, making certain instruments of writing negotiable, 29 Ohio L. 217, provides that if in suits by an indorsee against an indorser the plaintiff shall prove a demand of the maker, when the note became duo, “ or within a reasonable time thereafter, it shall be adjudged due diligence." Counsel have examined at length what is the reasonable time mentioned in this provision, in the hope of eliciting from us a construction of the law as a rule of practice. We admit the importance to community of a construction of this act. As it respects paper strictly commercial, such as is on its lace made negotiable at banks, we think our law has made no innovation upon the rule of the law merchant. As to other descriptions of negotiable paper, we have not been able to unite our minds, or those of even a majority of us, upon a construction of the statute that would carry into execution the meaning or intention of the legislature.

New trial refused, and judgment on the verdict for the defendant.  