p. 4571828, and payable five months after date'. The draft fell due on the 31st August, which being a Sunday, it was presented for payment on the 30th August, at New-York, where the acceptors resided, and not being paid, notice of the demand and non-payment was put into the post-office on the same day or the next morning; the mail then closed at 3 P. M. after which hour the demand was made. The notice directed and sent to the defendant was in these words: “ New-York, August 30, 1828. Sir—Please to take notice that Sprague & Dann’s draft on Rob’t & Geo. Bartow,, and accepted by them for $350, endorsed hy you, was last evening protested for non-payment, and that the holders looks to you for the payment thereof. Yours, tj-c. J. G. B., Notary Public.” (The words in italic were printed.) It was conceded on the trial that the defendant was an endorser on other paper between the same parties, but not for the precise amount, nor of the same date, nor which fell due in the same month with the draft in this case. The counsel for the defendant objected to the sufficiency of the notice, which objection being overruled, he requested the judge to charge the jury that the notice was calculated to mislead the defendant, and was, in law, not sufficient to charge him. The judge instructed the jury, that if they believed that the defendant was misled by the notice given to him, they ought to find for him; otherwise, their verdict should be for the plaintiffs. The defendant excepted. The jury found for the plaintiffs. A motion was now made to set aside the verdict.
D. Burwell <§• J. A. Spencer, for defendant.
According to the notice, the demand was made two days previous to the1 draft falling due. It was the province of the judge and not of the jury to pass upon the sufficiency of the notice ; the evidence consisting of a written document, the import of it was matter of law, and not of fact, (I T. R. 180;) he, therefore, should not have submitted to the jury the question whether or not the defendant was misled. Demand of payment must be made when a note or bill is due, and not before it is due. The notice in this ease stating the demand to have been made before the maturity of the draft th'e defendant
p. 458had a right to disregard it. This is not like the case of an informal notice, where the party would be put on enquiry.C. P. Kirkland, for plaintiffs.
If the notice be sufficient to put the party on inquiry it is enough. (2 Johns. C. 338.) No particular form of notice is necessary; that part of it in this case which states the draft to have been protested was superfluous, the party being apprised that the holders looked to to him for payment. Whether the defendant could have been misled by the notice was properly submitted to the jury. Such question was submitted in the case of Smith v. Whiting, ( 12 Mass. R. 6 ,) where the notice was grossly defective. The jury here were warranted in saying that the defendant could not have been misled.By the Court,
The only difficulty in this case is in the notice of non-payment. The note was due on the thirty-first day of August, 1828, which was Sunday, the demand was made on Saturday, the thirtieth, and notice sent by the first mail. The notice, dated the thirtieth, states payment, was demanded last evening instead of this evening. The judge was right in submitting to the jury the question, whether the defendant was misled. The case of Reedy v. Seixas, (2 Johns. C. 337, 8,) is similar in principle ; there, the note was misdescribed in the notice, and the court said it was sufficient to put the defendant on' enquiry, and that it was incumbent on him to shew circumstances to mislead him, such as other notes endorsed by him. Here there were other notes, but none due the same month. In Smith v. Whiting, ( 12 Mass. R. 6 ,) there were two errors in the notice : the maker’s.name was written Cushing instead of Cushman, and the note was said to have fallen due before the days of grace had expired, but the court considered the errors immaterial. In this case, it was properly left to the jury to say whether the defendant was misled, and they have found that he was not misled. The demand was made on the right day, and the notice was in due season. The stating in the notice that the draft was protested for non-payment on the evening before it fell due, could not prejudice' the defendant.
New trial denied!