
    HALSEY against SALMON.
    ON CERTIORARI.
    On promissory note, in action against an indorser, the time of notice of non-payment, must be stated in the declaration.
    The action below was brought by Salmon as indorsee against Halsey as indorser of a promissory note, made by one Beach. The only objection to the proceeding below that had any weight with the court, was the insufficiency of the state of demand. This contains three distinct counts; but the two last being subject to the same objection as the first, and in other respects more defective, and not having any bearing on the decision of the court, it is unnecessary to state them. The first count set out the note made by Matthias Beach, payable to John Halsey or order, in sixty days, dated the 24th March, 1810; the indorsement by Halsey Salmon before it became payable; the demand on Beach at the time it became payable, and his refusal to pay, whereof the defendant had notiee, but the time of notice was not set out.
    It was contended on the part of Halsey, the plaintiff in certiorari, that it was essentially requisite in a declaration in an action brought by the indorsee against indorser, to state the time of notice; that the action of the indorsee was incomplete without it; [*] that the fact was, that Halsey had never had notice of the refusal of Beach, the maker of the note, to pay, [668] until five months after he ought to have had notice; and in the meanwhile Beach became insolvent, and on his insolvency the action below was commenced.
   Pennington, J.

All the declarations in like cases, set out the time of notice; and for the best reason, that the plaintiff’s right to recover should appear on the face of the declaration and be put in issue; this declaration may be all true, and yet the plaintiff have no right of action against the defendant. Whether it was given immediately or delayed for months, would vary the rights of recovery. I know that it has been contended that whether notice is reasonable or not, is a question of fact to be tried by the jury. I take the law to be otherwise; and that reasonableness of notice, under the circumstances of the case, is a question of law for the determination of the court. It is true, the circumstances of the case, and the fact of notice, are matter of evidence to be found by a jury. If the parties live in the same town, notice must be given the same day. If at a distance, by the next post. It will not do to say, that among an agricultural people, this mercantile strictness ought not to be observed. If we adopt mercantile law, we must abide by it. I believe that there is too strong a passion in the country, for negotiable paper; but if people will handle edge tools which they have no need of, and do not know how to use, they must expect sometimes to be wounded with them. It may perhaps be said, that after verdict, the court will presume that reasonable notice was proved and found by the jury, or that they would not have found a verdict for the indorsee. But this is leaving the reasonableness of notice to a jury, which I never can assent to, and for this plain reason: that we never should have any fixed rule; one jury will think one time reasonable, another, another, and a third vary from both, and so on without end. A rule has been fixed by a course of legal adjudication, [*] founded^on the custom of merchants, which ought not to be disturbed. This is not the case of a right or title defectively set out, but the title itself is defective. But if this was not the case, the presumption in this case of reasonable notice is rebutted by the record of the justice, which states that a motion was made by the defendant below for a nonsuit, on this very ground of the want of proof of reasonable notice, or in the words of the justice, “because he” (the indorsee) “had not given notice of the default of the payment of said note, only one week prior to the day of trial of said cause,” which he impliedly admits by the answer he gives to the motion, “but produced no law, on this ground the court overruled the motion.” The note was payable the last part of May; the action was commenced [669] the 29th October after; and' from the record, it is fairly to be presumed, that no notice was given to the indorser until a week before the trial, which was the 9th November; that is, the actual notice was not given until after the suit was commenced, five months from the time it ought to have been given, and the jury no doubt thought this reasonable notice — which shows the danger of leaving a matter of law to the jury. The justice gives a most extraordinary reason for deciding against law, which is, that the defendant, a tavern keeper, did not come with his books into the court, and instruct him what the law was. I think that this judgment ought to be reversed.

The other judges concurred.

Judgment reversed.

Cited in Disborough v. Van Ness, 3 Halst, 231; Ribble v. Jefferson, 5 Halst. 139.  