The opinion of the court was delivered by
Williams, Ch. J.This is an action on á note, brought by the indorsee against the makers. The note was payable to one Bixby, who indorsed it to the plaintiff two days after-date, for a valuable consideration. The question is, whether the facts offered to be proved constituted a good defence to the note in the hands of an indorsee for a valuable consideration. If the note was overdue when indorsed, the evidence should have been received, as it would have made a good defence' in a suit by Bixby, the payee. We are of opinion that the note cannot be considered as overdue, so that the defendant could make the defence.
In this state, a nóte, payable on demand, may be sued immediately.. To decide that, on such a note, when made payable to bearer, or the order of the payee, such a defence can avail the maker, unless it is indorsed immediately, would destroy its negotiability. From the case of Barough v. White, 4 Barn. & Cres. 325, it is very clear the note would not be considered as overdue in England. In that case, Littledale, J. thought such a note could not be considered as overdue, unless some evidence was given that payment had been demanded, and refused. The rule, as settled in Massachusetts, appears to be the true and rational one, that, as it relates to the negotiability of notes payable on demand, and in questions between the indorsee and indor-ser and between the indorsee and maker, they are to be considered as payable in a reasonable time, and what is a reasonable time, is a question of law, to be decided by the court, on the facts which may be found by the jury.
From the facts, as stated in the exceptions, and which are to be taken as true by us, we do not consider that the plaintiff received the note after it was due and dishonored; but that it was indorsed to him in a reasonable time after date, and he was not tobe affected by any equitable defence which the defendants might have had against Bixby, the payee, and consequently the evidence offered was rightly excluded.
*490It may be remarked that, as -the county court tried the issue, they must have considered that the note was indorsed within a reasonable time, and was not over due. If this were a question of fact, their decision could not be reversed here. As a question of law, their decision was correct, so that in any view, their judgment must be affirmed.