that, where there is no dispute about the facts, the court will decide it; (x) and where the facts are not agreed upon, it is a mixed question of law and fact, and the court will instruct the

is not immediate payment, unless the receiver does something to make it so, by neglecting to receive it in a reasonable time. . . . . He left it to them whether there had been any neglect, and observed that the note was payable to the defendant, who had kept it eleven days, and probably would not have demanded it sooner than the plaintiff did, it appearing the goldsmiths were in full credit all the while. The jury desired they might find it specially, and leave it to the court whether there was a reasonable time, but the Chief Justice told them they were judges of that; whereupon they found for the defendant; and declared it as their opinion, that a person who did not demand a goldsmith's note in two days took the credit on himself." In Hankey v. Trotman, 1 W. Bl. 1, a case on a check, the question was left to the jury. In Lancaster Bank v. Woodward, 18 Penn. State, 357, 362, a check case, Woodward, J. said that, as to what is reasonable time, "Other authorities treat it as a question of fact, and this is perhaps the better opinion as to ordinary cases; but the delay in this case was so great, and the conduct of the bank was so grossly negligent entirely, that we think the learned judge was right in giving the jury the instructions he did."

In Gray v. Bell, 2 Rich. 67, 3 id. 71, reasonable time in making a demand of a note indorsed when overdue was held always to be a question of fact for a jury. See also Chadwick v. Jeffers, 1 id. 397; Brock v. Thompson, 1 Bailey, 322; Benton v. Gibson, 1 Hill, S. Car. 56; Eccles v. Ballard, 2 McCord, 388; Hall v. Smith, 1 Bay, 330, Branch Bank v. Gaffney, 9 Ala. 153. In Sice v. Cunningham, 1 Cowen, 397, it seems to have been treated as a matter of law. The judge told the jury, that “he had no doubt that five months and a half, the time given on this note, was an unreasonable length of time," but he told them to consider this in connection with the other facts in the case, &c. The charge was held incorrect. In Ranger v. Cary, 1 Met 369, the judge charged the jury, that unless the note had been transferred at least one month from date, it could not be considered as overdue. Held correct. In Sylvester v. Crapo, 15 Pick. 92, Shaw, C. J. said: "What is reasonable time is a question of law upon the facts proved." Byles (p. 163) says, it "seems to be a question of law." The cases cited were decided with respect to reasonableness of time in giving notice, but it is con. ceived that there may well be a difference in the law between the two classes of cases. See infra. The cases of Medcalf v. Hall, 3 Doug. 113, and Appleton v. Sweetapple, id. 137, arose on the question whether the payee made a banker's note received in payment his own, by not presenting in sufficient time. The payce did not present it till after banking hours on the same day he received it. Buller, J. thought

there should be some general rule in such cases, and it should be that presentment was sufficient if made the next day. Lord Mansfield thought "the next day should be the rule if it stood clear of any usage, but he thought that clear usage might vary the rule." In these cases there appears to have been a struggle between the court and the jury. The jury found for the defendant five times, and on a motion for a sixth trial, the plaintiff was refused, on the ground that he ought to have objected to the introduction of evidence as to a usage to present the same day. Chitty, Bills, p. 262, 10th ed., London, says it is now settled to be, in general, a question of law. But the cases cited are mostly on the question of notice, and the others do not support the proposition. See supra, chap. 8, p. 268, note h.

(x) Supra, p. 269, note i. Furman v. Haskin, 2 Caines, 369; Vreeland v. Hyde, 2 Hall, 429; Elting v. Brinkerhoff, id. 459.

jury as the circumstances of each case require, and the jury will determine the whole question.(y)

One of the circumstances which have been considered as having an important bearing upon this question is, the fact that the note is payable with interest; the reason being, that neither the parties to it nor the indorser contemplated an immediate demand, but all looked to the real time of payment as intended to be future, and to the indorsement as a continuing guaranty.()

Whether evidence is admissible of an agreement or understanding between all the parties that the note should not be demanded till some future day, has been somewhat considered. In some cases it has been doubted whether such evidence is admissible, on the ground that it would be allowing parol evidence to vary the written contract. (a) In another case, it was considered as material in determining the question of reasonable time, and not as controlling the terms or tenor of the note.(b) It is necessary for the indorser or maker to be a party to the agreement, if it is to be considered as admissible. (c)

(y) Supra, p. 269, note j.

(z) Church, C. J, Lockwood v. Crawford, 18 Conn. 361. In Wethey v. Andrews, 3 Hill, 582, Cowen, J. said: "If it (the note) had not been on interest, not being a banknote, I should have thought it right to presume that it had been demanded, and pay. ment refused (perhaps even within a week). I would presume it on the unwillingness which every prudent man feels to have his money lie idle; and would presume that the holder had seen or sent to the maker immediately, and pressed him for payment. But I think that directly the contrary is to be presumed with regard to this note, which bore interest. No one would understand the parties to intend that these words meant interest for a few weeks only; nor would the payee or purchaser of a note ordinarily desire to take it on the terms of a payment so soon. It would be contrary to the general course of business to demand payment short of some proper point for computing interest, such as a quarter, half a year, year, &c." But in Sice v. Cunningham, 1 Cowen, 397, it was held that the fact that the note was payable with interest did not take it out of the ordinary rule, and the same opinion is expressed in Perry v. Green, 4 Harrison, 61, 64. Some importance is given to this fact by Bayley, J., in Barough v. White, 4 B. & C. 325, but Holroyd and Littledale, JJ. do not mention it. They do, however, speak of it in the same case as reported in 6 Dow. & R. 379. Parke, B., in his opinion in Brooks v. Mitchell, 9 M. & W. 15, does not advert to it.

(a) Sice v. Cunningham, 1 Cowen, 397; Perry v. Green, 4 Harrison, 61. (b) Lockwood v. Crawford, 18 Conn. 361. See Brock v. Thompson, 1 Bailey, 322. In Field v. Nickerson, 13 Mass. 131, the point was touched upon, but not decided.

(c) Perry v Green, 4 Harrison, 61. See Martin v. Winslow, 2 Mason, 241. In Lord . Chadbourne, 8 Greenl. 198, it was doubted whether the fact that the indorser requested the indorsee not to call upon the maker" at present" would excuse a delay of six months.

The authorities are not uniform as to the effect of notes which are given as a security for a loan, or as accommodation paper; the better opinion being, that such notes should be placed on the same footing as others. (d) The distance at which the parties reside from each other has some effect on this question as to what is reasonable time, a shorter period being allowed when the parties live in immediate proximity.(e)

Where there are several payments indorsed on the note, the time of the last payment is said to be that from which the reasonable time is reckoned. (f)

When the note is offered in evidence, duly indorsed, there being no date to the indorsement, the presumption is, that it was indorsed before its maturity, and the burden is upon the party seeking to invalidate the note on the ground of dishonor before indorsement, to show that the transfer took place after a reasonable time had elapsed.(g) But when it is once shown to have been transferred to the holder at a time which would, in general,

(d) In Vreeland v. Hyde, 2 Hall, 429, the note was witnessed, and payable "without default or defaleation." It was given for a loan, and no demand was made for twentyone months. The question was whether the indorser should be discharged. "The rule requiring a presentment within a reasonable time was intended for, and is applicable to, negotiable instruments made for commercial purposes only. It was not intended for cases of suretyship, or notes of a like description, and the present one is evidently excluded from the rule, by the peculiar circumstances attending it. Here the holder was an old man, not connected with business, residing at some distance from the city. The defendant knew these circumstances, and cannot claim any peculiar indulgence from a consideration of the facts. As each case is governed in some degree by the circumstances attending it, in this there must be judgment for the plaintiff." But the better doctrine is that laid down in Sice v. Cuuningham, 1 Cowen, 397; Perry v. Green, 4 Harrison, 61, where it was held that the general rule applied to notes given for loans. In the latter case it was also held that an indorsement for the maker's accommodation was to be considered as any other indorsement It makes no difference in the case, that the indorsement was in lieu of a former security between the same parties, or was for the accommodation of the maker, unless the indorser assented to the delay." Story, J., Martin v. Winslow, 2 Mason, 241.

(e) Tilghman, C. J., Cromwell v. Arrott, 1 S. & R. 180, 184. See M'Kinney v. Crawford, 8 id. 351; Nash v. Harrington, 2 Aikens, 9, 1 id. 39; Eccles v. Ballard, 2 McCord, 388 For the circumstances bearing on this question, as regards presentment for acceptance, see supra.

(f) Sanford v. Mickles, 4 Johns. 224

(9) Ranger v. Cary, 1 Met. 369. Nor is the burden removed by proof that the note was delivered to the holder before dishonor, but was not indorsed till afterward. Ibid. In this case the indorsement was not written till two years after the transfer. The judge charged the jury, that the title was vested in the holder at the time of delivery and when the consideration was paid, as regards letting in the equities. Held corre

be considered as beyond the period recognized as a reasonable time, or where no demand has been made upon the maker for the purpose of fixing the liability of an indorser within that period. the burden is then shifted upon the holder, or the party seeking to enforce a claim by means of the rule, to show such circumstances as will amount to a legal excuse for not presenting the paper sooner.(h)

A note or bill in which no time of payment is mentioned is equivalent to a note on demand, and it is held that no evidence is admissible to affect the bill by proof of a different agreement.(i)

A note indorsed after maturity is equivalent to a note on demand, so far at least as regards the necessity of presentment to the maker in order to charge the indorser. (j) The demand

(h) Martin v. Winslow, 2 Mason, 241; Hendricks v. Judah, 1 Johns. 319; Emerson v. Crocker, 5 N. H. 159.

(i) Piner v. Clary, 17 B. Mon. 663; Thompson v. Ketcham, 8 Johns. 189; Herrick v. Bennett. id. 374; Cornell v. Moulton, 3 Denio, 12; Bennett, J., Michigan Ins. Co. v. Leavenworth, 30 Vt. 11, 20; Whitlock v. Underwood, 2 B. & C. 157, 3 Dow. & R. 356, placing such notes on the same footing as those on demand, with reference to the stamp act; Sheehy v. Mandeville, 7 Cranch, 208, where the declaration did not state when the note was payable, and the note, when offered in evidence, proved to be payable at a definite time, - held a fatal variance; Bacon v. Page, 1 Conn. 404, where the dec laration was held bad for not averring the note to be payable on demand, although it concluded by averring “that the defendant hath never performed the same, though often requested and demanded," &c.; Green v. Drebilbis, 1 Greene, Ia. 552, where it was held that the words "on demand" need not be used in the declaration, and that words of similar import were sufficient. In Bank of Utica v Smedes, 3 Cowen, 662, the declaration alleged an undertaking by the defendants to charge the first indorser of notes payable on demand, and set forth the first indorsement to the plaintiffs as having been made on a day certain, the indorsement and delivery of the notes by the plaintiffs to the defendants about six months after, and their undertaking at the lat ter time. Held sufficient, especially after verdict, though the declaration did not aver that the demand of payment was made within a reasonable time. Freeman v. Ross, 15 Ga. 252.

(j) In the following cases, where it was contended in argument that no presentment was necessary, it was held that demand must be made. Berry v. Robinson, 9 Johns. 121; Leavitt v. Putnam, 1 Sandf. 199; Bishop v. Dexter, 2 Conn 419; Dwight v. Emerson, 2 N. H. 159; Bank of North America v. Barriere, 1 Yeates, 360; an early Pennsylvania case to the contrary must be considered as overruled by M'Kinney v. Crawford, 8 S. & R. 351; Patterson v. Todd, 18 Penn. State, 426; Ecfert v. Des Coudres, 3 Const. R. 69; Course v. Shackleford, 2 Nott & McC. 283; Alewood v. Haseldon, 2 Bailey, 457; Levy v. Drew, 14 Ark. 334; Poole v. Tolleson, 1 McCord, 199; Benton v. Gibson, 1 Hill, S. Car. 56. But in Gray v. Bell, 3 Rich. 71, O'Neall, J. said: "I am however prepared to go much further, and to hold that the indorser of a note negotiated after due, is to be regarded either as a new maker, or as the drawer of a bill on a man without funds; in neither of which cases is a demand of payment or notice at all necessary. But a majority of the court is not as yet prepared to go so far."

must be made within a reasonable time; (k) and with regard to what shall be considered reasonable time, it is laid down by some authorities that the same strict rules are not to be applied as are required where a note has still time to run.(1) But other authorities seem to place the two classes of cases on the same footing, (m) and it is believed with better reason; for the law on

(k) Sanborn v. Southard, 25 Maine, 409; Branch Bank v. Gaffney, 9 Ala. 153; Benton v. Gibson, 1 Hill, S. Car. 56; Van Hoesen v. Van Alstyne, 3 Wend. 75; Bishop v. Dexter, 2 Conn. 419.

(l) Dincan, J., M'Kinney v. Crawford, 8 S. & R. 351; Hall v. Smith, 1 Bay, 330 ; Chadwick v. Jeffers, 1 Rich. 397; Gray v. Bell, 2 Rich. 67, 3 id. 71. In Rugely v. Davidson, 4 Const. R. 33, Gantt, J. said: But when a note is indorsed after it is due, the transaction assumes a different aspect. It is no longer a case within the custom and usage of trade; the expectation of punctuality of payment from the drawer has vanished, and the holder, in ordinary transactions of this kind, looks rather to the person with whom he has contracted than to the drawer, for indemnity."

(m) In Dehers v. Harriot, 1 Show. 163, all the merchants agreed "that a bill negotiated after the day of payment was like a bill payable at sight." By a statute in Massachusetts, sixty days from the date of a note is declared to be the period of reasonable time within which demand is to be made upon the promisor, in order to charge an indorser; and in Rice v. Wesson, 11 Met. 400, where the indorsement was made more than sixty days from the date, the court expressed an opinion to the effect that the same length of time was still to be considered as reasonable. They also decided that the defendant was not liable, because the holder, having demanded payment earlier than he was obliged to, neglected to give the indorser notice, although a subsequent demand was made within a reasonable time, and notice of the last demand was duly given. In Bishop v. Dexter, 2 Conn. 419, Gould and Hosmer, JJ expressly say that there is no difference between the rules applicable to each class. So Collier, J., Kennon v. M'Rea, 7 Port. Ala. 175; Adams v. Torbert, 6 Ala. 865; Branch Bank v. Gaffney, 9 id. 153. See Ecfert v. Des Coudres, 3 Const R. 69; Course r. Shackleford, 2 Nott & McC. 283; Poole v. Tolleson, 1 McCord, 199, where Richardson, J said: "If it be asked when notice is to be given, I can only answer that, in my individual judgment, immediate notice is as much required in such a case as in any other. Not only simplicity and uniformity require that the same rule should prevail, but there is the same force of reason and necessity in the one case as the other, whether we argue from the letter, the allowed import of the contract, or from the consequences which may follow." These same reasons would appear to apply all the more strongly to pre

sentment.

There are two early cases in Vermont, where an opinion is expressed, that at least as much strictness, if not more, is necessary in the case of an indorsement after matnrity as in any other. Thus, in Nash v. Harrington, 2 Aikens, 9, a note on demand was indorsed eight months from date, and was treated as overdue. The holder neglected presentment till the seventh day after the indorsement to him, and it was held that the indorser was discharged. Hutchinson, J. said: "Under these circumstances, the demand should have been made in a day or two at furthest." The same judge said, in Aldis v. Johnson, I Vt. 136, 140: "If the indorsement be made after the note falls due, the demand of payment must be made as if the note fell due the day of the indorsement."