The facts being undisputed, it is a ques
Kent, C. J. That testimony would not alter the case.
Plaintiff non-suited.(2)
Baldwin, for plaintiff.
S. Jones, for defendant.
(1).
Whether it is the province of the judge or of the jury to decide upon the reasonableness of notice, is a question which was for a long time without any express adjudication; (Bailey on Bills, 3rd ed., 128, n. 3;) some judges deeming it a mixed question of law and fact, (Tindall v. Brown, 1 D. & E., 167,) and others, a question of fact, for the jury, under all the circumstances of accident, necessity, and the like. Hoper v. Alden, 6 East. 15 ; 1 Sch. & Lef. 461. So great, indeed, seems to have been the fluctuation of opinion in the courts on this subject, that Buller, J., in the case of Tindall v. Brown, observed that the numerous cases on this point reflected great discredit on the courts of Westminster. This question, however, seems at last to be at rest, both in England and in our own courts. It is now considered as a mixed question, to a certain extent; the facts, merely, are to be found by the jury, and the question of reasonableness is then a question purely of law: so that when the facts are undisputed, and, in the judgment of the court, reasonable notice is not made out, it is the duty of the judge to non-suit the plaintiff. Batemam, v. Joseph, 13 East. 483; Tindall v. Brown, 1 D. & E., 137 ; Bryden v. Bryden, 11 Johns. 188. And this results, says Spencer, J., in the ease last cited, from the necessity of having some fixed, legal standard, by which men may not only know the law, but be protected by it. The difficulty, therefore, on this subject seems to have been to abstract the question of reasonableness from the matters of fact embracing it, and to confine each question, distinctly, to its proper forum. Lawrence, J., in Daresbishir v. Parker, (6 East. 12,) first relieved this subject from its intrinsic difficulties, and placed it on its true ground ; although his opinion does not seem to have been, in that case, fully acquiesced in by the court. His reasoning is founded on that of C. J. Willes, in Bell v. Wardell, Willes, 204, 206. In that case, a custom was pleaded for the inhabitants of a town, to walk and ride over a certain close of plaintiff’s, at all seasonable times; and, upon demurrers joined in the course of the pleadings, it was held, that, the facts being admitted as set forth, the court were the proper judges whether the defendant had used the alleged custom at a seasonable time or not, as in the case of a reasonable time, reasonable fines, customs, and services, of which the court are the proper judges. For, what is contrary to reason, cannot be consonant to law, which is founded on reason; and, therefore, the reasonableness in these and the like cases, depends on the law, and is to be decided by the judges. But, though the court are judges of this, yet, in many cases, it may be proper to
(2).
This case, on the main question of notice, came before the court, and was decided in August term, 1814, (11 Johns. 231,) when the motion to set aside the non-suit was refused, the court deciding that when the parties reside in the same city or place, notice of dishonor of bills or notes must be personal, or something tantamount; such as leaving it at the dwelling-house