
    Benjamin Fortner vs. Parham & Gibson, et al.
    
      Qucer-e? If all the parties to a note indorsed after maturity, reside in or near the same place,-'should payment be demanded and notice given to the indorser, on the same, or the next day after the note is received, in order to fix his liability ?
    If the note be received on Saturday, a demand and notice on the following Monday will be sufficient. '
    The notary, on the next day after the note was protested, met the clerk of P. & G., who were indorsers of the note, in the streets of Clinton, their place of residence, without having called either at their boarding house or place of business, and gave the notice to him and requested him to deliver it to them ; there was no evidence that their clerk was their agent to receive notices, or that he was in the habit of attending to such business, or that he delivered the notice to them.' Held to be insufficient.
    Notice, to be binding, should be given on the same, or the day after the dishonor of the note.
    This was an action of assumpsit broug.ht to the May term, 1839, of the circuit court of Hinds county, by Benjamin Fort-ner against Ethelevin Sadler, William S. Parham, Willis H. Gibson, James M. Wall, and Michael Wall, on the following promissory note.
    ’ “ i$ 128 Clinton, January 20th, 1838.
    “ One day after date I promise to pay to the order of Parham & Gibson, one hundred and twenty-eight dollars thirty-five one hundredths, for value received, with interest from January 1st, 1838. Ethelevin Sadleii.”
    Indorsed “ February 9fh, 1839. Parham & Gibson, James M. Wall,. Michael Wall.”
    The defendants pleaded non assumpsit. At the trial, after suggesting the death of the defendant Sadler, the plaintiff read to the jury-the note and indorsements declared on; and then introduced Richmond J. Brown, who testified that, at the request of the plaintiff, he demanded payment of the note sued on, of the maker, on the 11th day of February, 1839, and on the next day, about sundown, he met Alfred Gibson, brother of Willis H. Gibson, and clerk of Messrs. Parham & Gibson, in the streets of Clinton, coming, as witness supposed, from the stove of Messrs. P. '& G., and on his way to supper, and handed to him a written notice to Messrs. P. & G. of the dishonor of the note, and that the plaintiff looked to them for payment, and requested him to deliver it to them; that he did not know whether they ever received it or not; that on the 13th of the same month he delivered in person a similar notice to James M. Wall; that no notice was ever given to Michael Wall; that all the defendants except Michael Wall, resided in the town of Clinton, and that he did not call either at the boarding house or store of Messrs. P. & G.; that William S. Parham was a lawyer, and had an office in Clinton; and the plaintiff was a farmer, and lived about nine miles in the country. Several other witnesses were examined, who proved in substance, that Alfred Gibson was the brother of Willis H. Gibson, and fjthat they sometimes boarded in the same, and sometimes in different houses; but whether they boarded in the same house on the 12th of February, 1839, the witnesses could not tell; and that the note sued on was one of several given for land. After the evidence was closed, the plaintiff’s counsel moved the court to instruct the jury ; 1. If from the testimony they “ believe, that demand was made, and notice of nonpayment given, in a reasonable time, the indorsers will be charged.” Which instruction the court gave with this qualification, “ this instruction is correct as an abstract principle of law, but I must explain it to the jury; the law says the notice is not reasonable, where the maker and indorsers live in the same town, if it be not given on the day of demand, or the next day at farthest: the second day would be insufficient. Three other instructions were asked by the plaintiff’s counsel, one of which was given, and two refused by-the court; but neither supported by any evidence in the cause. The plaintiff’s counsel excepted to the opinion of the court, qualifying his first instruction, and rejecting the third and fourth. Verdict and judgment for the defendants. The plaintiff brought the case up by writ of error.
    
      Mitchell San, for the plaintiff in error.
    This case has some peculiarity of features which distinguish it from every case in the books,, that I have been able to find. It is not a case arising between merchants. It is not predicated upon any usual mercantile transaction. It is not a transaction upon or by means of a single note. It is ,not upon a note indorsed before it is due. But this case is a part of a transaction of sale and purchase of lands, amounting to about $ 5000, in the whole, arising not in a commercial city, but in the country, between planters, or at least between a farmer on the one hand, and merchants and planters on the other; which of itself is a circumstance worthy of consideration by the'court, as it would seem harsh to exact at the hands of an ordinary farmer, that promptitude and exactness in conducting any mercantile transaction, a sort of business in which he is only occasionally and ■very seldom engaged, as would reasonably be required at the hands of the city banker, or professional merchant. As a rule, that might be characterized by the most reasonable justice, relative to the daily business of the latter, would be found, when applied to the former, to operate with the utmost severity, if not injustice; for however just the maxim of the law may be, that ignorance of the law will not excuse the criminal, in civil proceedings, the reason of the maxim ceasing, a more liberal and mild rule is adopted.
    Another feature of the case is, that the note sued on in this case was one of about twenty, upon different makers; but indorsed by the same parties, and all delivered at the same time to one individual, who in all probability knew not the nature of the securities, thus given him ; pretending to secure him the price of the lands, he had in all honesty and fairness sold; and for the ultimate payment for which he, doubtless, from the very nature of the negotiation, looked to the responsibility of the indorsers rather than of the makers. But as he could not be a witness himself, and being informed, that, to secure the liability of the indorsers to himself, it was requisite to make demand of the various makers, in a reasonable time and to give notice of nonpayment, in each case to the indorsers, he at once employs an agent for that purpose; who instantly sets about the discharge of his duty; and deeming it of more importance to make á demand upon all the makers of the several notes placed in his possession at the earliest possible point of time,, than to give notice in some of the cases at the earliest moment; as in reality this course would seem completely to serve the interests of all parties, but especially the interests of the indors-ers, and by being thus diligent in endeavoring to procure payment, from each and all of the makers, which payment, if obtained, would be of as much benefit to the indorsers as any one else, if he should fail to give notice of nonpayment in some instances, on the day of demand or the next day; can it be said that reasonable diligence and industry has not been used, both to make demand and give notice of nonpayment'? and the more especially in a case where it is not even pretended that the indorsers have suffered the smallest loss or injury in consequence of an apparent delay; (though not a real one) as in the present case.
    It will be remembered that nearly a 11 the rules, and also authorities, upon the subject of demand and notice, are predicated of and upon bills of exchange, bankers’ checks, and notes, paper not only negotiable, but of a highly commercial character; the offspring of the lex mercatoria; an institution of peculiar origin and accidental growth; and though ages have elapsed since its adoption, as offering some just rules of proceeding, in courts of justice, to ascertain the rights of parties, its numerous and often conflicting local customs, have not yet been brought to harmonize; a system which owes its adoption chiefly if not wholly to the maxim that “ courts of justice will always endeavor to give efficacy to the honest intentions of the parties at the time of contracting; ” and yet it frequently, by a too strict adherence to some of its arbitrary rules completely subverts that very maxim — I say, while it is recollected that most of the rules of the lex mercatoria are predicated of commercial paper, men, and things, and while applied to these their legitimate subjects, their results and effects may be the attainment of the purest justice; it will be apparent that if the nature of the Subject-matter of contract, the business habits of the parties contracting, or the frame of the paper securities, either or all be changed, that the reason of the rule would not apply, and consequently that its forced operation will be more or less absurd in porportion as that change shall be greater or less. The proposition is nowhere to be found that the same promptitude and strictness is to be observed by the holder in making demand and giving notice of nonpayment, in case of a note indorsed after due, as of one indorsed before due, in order to bind the in-dorsers. Chitty on Bills, 242. In the first instance, the note is already dishonored, and no reasonable expectation can be entertained that it will be paid, except on coercion by law; in "the other, the indorser may reasonably expect that the note will be honored and paid by the maker at its maturity; and it is on account of such reasonable expectation that the indorsee is bound to make demand on the day the note shall fall due, and give notice of nonpayment to his indorser; and this too upon the presumption that the indorser was a fair dealer, and as such could not put into circulation’by his indorsement, the note of one he knew to be insolvent; but being guilty of no fraud, it was but reasonable and proper that he should have the earliest information practicable' of the dishonor of the note, that he might use the best means in his power to secure his debt from the maker. Now if these be the true reasons why demand and notice are necessary to charge the indorser of a note indorsed before due; they are wholly inapplicable to a note indorsed after it is due, and therefore it would seem, that of such a note, demand and notice were unnecessary. Chitty on'Bills, 243, note 6.
    But it is said that “ the act of indorsing a note after it is due, is similar to the act of drawing a note payable at sight;” (Chitty on Bills, 242. 1 Show. 363); and will place of course the parties in the same situation. On sight, I promise to pay A. B. or order, ten dollars, &c. Signed C. D., is a note of this description ; and it is manifest that it is a promise to pay in futuro, on condition of the return of the sight-note to its maker, who most assuredly cannot be supposed to have a right to notice of his ■own refusal to pay a note demanded of himself; for It is equally 'obvious that the indorser of a promissory note after it is due can place himself in respect to his indorsee in no other light with respect to the maker of the same note, than that of one whose liability is already fixed, and who is bound to pay the amount of the note unconditionally, when again the same note shall be presented' to him. It is true, however, that if the indorsee of a note, indorsed before or after due, fail to notify the original maker of the transfer, the note in his hands would' be liable to offsets which would have been good against the indorser or original holder of the note. (The giving which is at the risk of the holder, and can only affect his interests as between him and the maker, and not as between indorser and indorsee. Chitty on Bills, 244.) And the above appears to be the only reason for a demand upon the original maker of the note. And’ it would appear, that to give sight to, or make demand of payment of the indorser, in such a case, at any time before the law would raise a presumption of payment, by the- original maker, would bind the indorser, by the very nature of the contract; unless rebutted by proof of a custom or usage well established, which required it to be demanded sooner.
    If reason, not contravened by any principle of law, would dictate such a rule in such a case between bankers, merchants, and habitual traders, by how much stronger reason should such a rule be enforced in a case like the present, where a farmer, on the one side, is contracting to sell his lands to a lawyer and two merchants on the other, and who, to secure the payment of the price of the land to him, agree to add their responsibility to that of sundry other persons, by indorsing and delivering to him the written liabilities of these others; for such is the very sum and substance of the contracts, by which those indorsers intend to bind themselves to the ultimate payment of the price agreed to be given for the land, or else they intended, by aid of legal technicalities, to perpetrate a fraud, and cheat their in-dorsee out of his lands ; if the latter was their intention, the law will hold them bound, as it abhors a fraud; if the former was the intention, then are they bound by the spirit, and by the terms of the contract; for the court will endeavor to give efficacy to the intentions of the contracting parties. Does then. this paper, this operation, this contract, wear no other features than those of an usual commercial paper, an usual mercantile operation; or a contract not falling within the general law of contracts, hut governed alone by the “ usage and custom of merchants?” If it be not merely in the category of a commercial paper, growing out of a mere mercantile contract, then I apprehend that decisions of courts, and rulings of judges, (how eminent soever they may have been,) upon paper of that description, will not weigh much with this honorable court in forming the judgment they shall render in this case, resting as it does upon subject-matters, of a totally different class, and depending on principles of a totally different nature, from those fairly within the reason and operation of the lex mercatoria.
    
    But again, the indorser of a promissory note, after.it has fallen due, is not in the same situation as the drawer of a bill, payable at sight, not only for the reasons above, but also for these further reasons. 1. Because a bill payable at sight, in its form and substance and legal effect, embraces these three persons, drawer, drawee, and payee, and their various rights and interests ; and may also include a long catalogue of indorsers. 2. Because it is not due and payable, by the drawer, or drawee by the terms of the contract, until it is, at some future time, presented for payment to drawee. 3. Because it was not “ dishonored, in the hands of the drawer, and does not come to the hands of the payee, tainted with dishonor and suspicionas per Chief J. Abbott. 4. Because, as it was not dishonored, when it left the drawer’s hands, he may have had a reasonable expectation that the drawee would pay at sight of it; for he may, and ought to have had funds in the hands of drawee, upon which he drew. 5. Because it is alone on the presumption, that a drawer did have funds in the hands of the drawee, that might be squandered, that timely notice by payee of draw-ee’s refusal to honor the bill he holds, may enable the drawer to protect himself against the default of the drawee, is required of the payee as a fair'trader. 6. Because none of these reasons will hold in the case of a promissory note indorsed post due.
    
    But it is said, that the maker of a promissory note is in the like case with the acceptor of a bill. Leigh’s N. P. 451, cites 2 H. & W. 194. In other words, in légal effect a promissory note is a bill of exchange drawn upon and accepted by the maker at the time of signing it. And hence it is evident the drawer of a bill payable at sight, and the maker of a promissory note, are not in the like status ; for the acceptor of a bill and maker of a note are not entitled to notice of demand, &c., even in cases where the bill has a time to run after acceptance ; for the contract of the acceptor is simply this, “ I will pay at maturity, and will look to be reimbursed by the drawer.” What, then, is the nature of the contract made by indorsing a promissory note post due ?■ Though it would seem, in many respects, to be a guaranty, yet upon precedent it is not a guaranty. Is it, then, equivalent to drawing a promissory note, of the like tenor of the original, except that it is payable at sight or on demand 1 Tide Chitty on Bills, 242. 4 Show. 163. Chitty on Bills, 401. In either of these cases the most rigid decisions only go to this extent. They declare that “ demand must be made and notice given in a reasonable time.” And “ the question, what is reasonable time, is to Be gathered from all the circumstances of the case.” Chitty on Bills, 413. And therefore it is a question or conclusion of fact, which properly belongs alone to the jury; for they are the triers of the facts. Chitty on Bills, 369, 401, 402; and Statutes Circ. Court, § 227.
    The great object to be proved, in all cases of demand, &c. is, that the party sought to be charged, did actually receive notice, in a reasonable time, which is a fact to be established by competent legal testimony, by the swearing of witnesses directly to the fact, or by the evidence of circumstances ; the credibility, weight, and effect of the testimony in the one case, and the proper inferences and conclusions to be drawn from it on the other, belong exclusively to the province of the jury. And yet the court below charged the jury directly against these most obvious principles of law; charging, in substance, that, from the facts proved, the jury had no right to'draw the conclusion, that notice was received by the indorsers in a reasonable time, which was most palpably erroneous; first, as an instruction on the weight of evidence; and, second, as deciding facts that ought to have been determined by the jury. U. S. Bank v. Hatch, 6 Peters, 250; Leigh’s N. P. 446.
    It is also said that “ the indorser of a note, post due, is in the same situation, and therefore has the same rights as the drawer of a bill of exchange, payable "at sight.” Now this cannot be true, because a bill of exchange has days of grace allowed, (Chitty on Bills, 510); and is not dishonored, if payment be made on the third day of grace, or third day after sight given to drawee ; while the note indorsed post due is already dishonored before it leave the hand of the indorser, and in most instances the days of grace also passed. When thén, in this latter instance, shall demand be made, and notice of nonpayment given? on the third day of grace? If so, from what time will you begin to count the days of grace ? Shall the indorsee be compelled to hunt up the original maker, to give sight, and again on the third day of grace to make a demand ? Shall he be required to be more strict, more laborious, and more diligent, to give notice to the indorser of a fact already known to him, that of the dishonor or nonpayment of the note by the maker, than is required in ordinary cases ? To these questions an affirmative answer would seem to be even absurd. And if we do not run into this absurdity, the conclusion seems almost irresistible, that the party indorsing a note after it is due, becomes thereby liable upon the same note, as a maker, of whom no demand of payment is necessary, to whom no notice of nonpayment is due. If however demand of the original maker were necessary, and it cannot be made from the very nature of the case at the time required by law in ordinary cases, that is, on the third day of grace, when shall it be made? The answer is, in a reasonable time, considered relatively to all the circumstances of the case, and in connection with the other business and duties of the party by whom notice is to be given, so as not to require a neg^ lect of his other business. Chitty on Bills, 401 and 413.
    And upon the whole, in view of all the authorities, and the reasons of their decisions, it is concluded, —1. That in a case circumstanced like the present, no demand of payment and notice of nonpayment are necessary ; 2. If demand and notice be necessary, it is good if made in a reasonable time, in view of all the circumstances of the case • 3. That the rules of diligence, in a case of the nature of this, are not so strict as in a case purely of a commercial character, or between merchants; and 4. That the court belowerred both in giving, and in refusing to give, the charges asked and unasked respectively, as set forth in the bill of exceptions in this case, and therefore the judgment ought to be reversed.
    
      Mayes & Clifton, for the defendants in error.
    The first instruction as explained by the judge is the law. The rule is that if a note be indorsed after it is due, it is equivalent to drawing a bill payable at sight. Chitty on Bills, 242, (Springfield ed. 1836.) Dehersv. Harriot, 1 Show. 164. There is no difference between notes indorsed before or after due. McFarlane v. Administrator of Shackleford, 2 Nott &> McCord, 283. When a bill or note is payable on demand, the presentment for payment must be within a reasonable time after the receipt of it. Usually the next day. Chitty on Bills, 410. In his work on Bills, page 314, Chitty says, “It,is perfectly clear that if a party who has-received such bill or note, does not on the next day present it, or forward it for presentment, in, due time on the next day, or transfer it, but locks it up, or keeps it, he thereby forfeits all claim upon the person from whom he received it.” See also Camidge v. Allenby, 6 Bam. & Cres. 373.
    The argument, then, runs thus :
    The indorsement of a note over due is equivalent to drawing a bill payable on demand.
    A bill payable on demand must be presented or forwarded on the next day, or indorsee has no claim on indorser.
    The presentment was not on the next day, therefore the in-dorsee has no claim on the indorser.
    It was highly proper that the judge should have added the explanation to the instruction given. Had he not done so, it might have misled the jury. . When he said that the demand should be made in a reasonable time in the instruction given, the explanation only shows what he meant by the words “ reasonable time.” When the legislature declared that the judge should not instruct unless the instruction was moved for in writing, they could not have intended so absurd or mischievous an enactment, as that the judge should not so explain the instruction given as to prevent its misleading the jury.
    If, however, the legislature so intended, and the judge was not at liberty to explain his instruction, it cannot be assigned for error, because a party cannot assign for error that which is not to his prejudice. Harrison v. Baker, 1 J. J. Marshall, 318. It can never be to the injury of a party, that the law was properly expounded. It has already been shown that it was properly expounded; and therefore it cannot be assigned for error. If without any motion the judge instruct the jury, and do so correctly, it can be no sensible cause of reversal. Why should it 1 What sensible or useful end could be attained ? This court would not remand the cause, and order an erroneous instruction. When the cause goes back the instruction would be asked and given, and the same result would follow as on the first trial. If the cause be decided rightly, the only effect of sending it back would be to give the complaining party a chance to get it illegally and unjustly determined in his favor. It would have been error in the judge not to have made the modification. Where there is no dispute as to the facts, the court must determine the question of diligence used to charge an indorser, and the sufficiency of notice, and not submit these questions to the jury. Remer v. Downer, 23' Wend. R. 620. Bank of Utica v. Bender, 21 Wend. 643. In this case there was no dispute as to the facts. Therefore the question of diligence ought to have been determined by the judge. Indeed there can be nothing in any case for a jury to determine if there be no dispute as to facts, for to ascertain facts is the only province of a jury.
    The act of assembly, prohibiting instructions unless moved for, is unconstitutional. The constitution vests the judicial power in the court. The decision of such questions of law as arise in a case is essentially a judicial act. To provide that under any circumstances the court shall not decide the law, is, quoad hoc, to deprive the courts of judicial power. As well might the legislature wrest from the juries of the country the decision of matters of fact, and transfer their constitutional right to the court, as wrest from the court the decisions of questions of law, and transfer their constitutional right, nay duty, to the jury.
    The court rightfully refused the other instructions, because there was no evidence conducing to show the facts to which they related.
    As to the defendants, Parham and Gibson, the evidence was that the notice was delivered to the clerk on the street, supposed to be on his way to supper. Whether he delivered it to his employers, or saw them that night, there is no evidence tending to show, no fact from which it can he inferred; and even if there were, that would not suffice. “It is incumbent on the holder to prove, by distinct and by positive evidence, that due notice of the nonpayment was given to the party sued, and it cannot be left to inference or presumption.” Chitty, 611. There was then no proof of notice to Parham & Gibson. As it relates to defendant Wall, the evidence was that personal notice was served on him on the 13th. The presentment was on the 11th. Notice should have been served on him on the 12th, at farthest. Chitty, 613. There was then no evidence conducing to show legal notice to any of the defendants. The instructions, therefore, were abstract propositions. It is no ground of complaint that the court refused to instruct on an abstract proposition. Brubaker v. Poage, 1 Monroe, 126. Boone v. Dyher’s legatees, 3 Mon. 634. Greathouse v. Broten, 5 Mon. 282. Caldwell v. Drake, 4 J. J. Mar.- 247. Clark v. Baker, 7 J. J. Mar. 197.
    Had the court given a peremptory instruction to find for defendants it would have been no ground of complaint. McPherson v. Hickman, 1 Monroe, 170. Hanks v. Roberts, 3 J. J. Mar. 298. See Perry & Fex v. Clark, 6 Howard, 496.
    If the verdict be conformable to law and evidence, the court will not reverse for refusal to give instructions which might have been properly given. Breckenridge v. Anderson, 3 J. J. Mar. 717. Fitzgerald v. Baker, 4 J. J. Mar. 398.
   Mr. Justice Clayton

delivered the opinion of the court.

Two questions were presented for consideration, in the argument of this cause. 1. Whether the note sued on was presented for payment in due time, and 2. Whether the notices of nonpayment were given in proper time to charge the indorsers.

The note was over due at the time of the indorsement, which bore date on the 9th of February, 1839, and the demand was made on the 11th of the same month. It was urged in argument that this was too late. The rule as to the precise time when demand of such an instrument should be made, is not very definitely settled. Bailey on Bills, 296. 2 Aiken, 9.

Some of the cases say, it must be made in reasonable time, but what is reasonable depends on the circumstances of each particular case. Mohawk Bank v. Broderich, 10 Wen. 304, 3 Wen. 79. According to others, it is like a note payable oh demand, or a bill at sight, as to which, it seems to be settled, after a good deal of fluctuation and uncertainty, that the presentment must be made on the next day after the instrument is received, if the parties live .in or near the same place, or must be forwarded for presentment on that day, if they live in different places. In either instance it is not necessary to act on the day of its reception. Chitty on Bills, 414.

But the facts of the case do not call for a decision of this point. The evidence clearly shows that the 9th of February, 1839, fell on Saturday, and that the presentment was on Monday, the 11th. That was sufficient. Sunday is uniformly excluded from the computation of time in such matters; and a demand upon that day would have been a nullity.

The question as to notice next claims attention. The evidence was that about sunset of the 12th of February, Richmond J. Brown, who made the demand, met the clerk of Parham & Gibson, in the streets of Clinton, in which place the defendants all resided, and handed him a written notice, with a request that he should give it to them. The witness Brown, stated that he did not call at the store, or residence of Parham & Gibson. There was no evidence that the clerk was their agent to receive notice, or that he was in the habit of attending to such business for them, nor was his testimony introduced. Without proof of his agency, or of some fact from which that agency might reasonably be inferred, the delivery of notice to him, without proof that it came to the hands of Parham & Gibson, was insufficient to charge them. See Wilkins v. Commercial Bank, Natchez, 6 How. 221. Had Brown gone to the store or to the dwelling-house of the defendants at a proper time, and found it stmt, it might have been different. Chitty on Bills, 502, notes.

The instructions asked by the plaintiff’s counsel and refused by the court, were properly denied. Some of them were mere abstract propositions, not called for by the evidence ; and others were not in accordance with law.

The notice tp Wall, the other indorser, was not given till the 13th of February. He also resided in Clinton. The notice, to be binding, should have been given on the day after the dishonor. Chitty on Bills, 514. Or if it had been requisite to send the notice by mail, then it should have been deposited in the post office in such manner as to comply with the' rule laid down by this court, in the case of The Planters Bank v. Downs, et al. The circumstance that the note was indorsed after maturity, makes no difference as to the time of giving notice after presentment.

The judgment of the court below is affirmed. •  