promissory notes, and as between the endorser and endorsee of a negotiable *note; and the acceptor or *101 at a particular place, a demand of payment at that place must be averred and proved. 1 Blackford's Rep. 328. As evidence of the endless refinements and distinctions on this subject, we may refer to the case of Mitchell v. Baring, (4 Carr. & Payne, 35. 10 Barnw. & Cress. 4. S. C.) where it was held, that if a bill, payable in London, be accepted for honour, to be paid if protested and refused when due, it must be protested at Liverpool, where the drawee resided. This decision led to the statute of 2 and 3 Wm. IV. c. 98, by which protest for non-acceptance of bills payable at any place other than the place herein mentioned as the residence of the drawee, may, without further presentment to the drawee, be protested for non-payment in the place expressed by the drawer to be payable. In Picquet v. Curtis, 1 Sumner, 478, Mr. Justice Story considered the principle settled by the decision in the House of Lords, in the case of Rowe v. Young, as irresistible, and that in the case of foreign or inland bills, made payable at a particular place, the demand and the dishonour must be there. But the decision in 13 Peters, above cited, settled the question the other way, and the whole current of American authorities, as referred to in that decision, are on the same side. In Folger v. Chase, 18 Pick. 63, it was held, that if a note be payable on demand at a specified bank, no demand need be made at any other place; and if left at the bank for collection, no specific demand is necessary. Id. Bank U. S. v. Corneal, 2 Peters, 593. State Bank v. Napier, 6 Humphrey Tenn. R. 270. No demand need be made even at the place, to charge the maker of a note payable at a particular place, according to the law as declared in Arkansas. M'Keil v. Real Estate Bank, 4 Pike, 592. * Brown v. Harraden, 4 Term Rep. 148. Bussard v. Levering, 6 Wheat. Rep. 102. Lindenberger v. Beall, ibid. 104. Crenshaw v. M’Kiernan, 1 Miner's Ala. Rep. 295. Fleming v. Fulton, 6 Howard's Miss. R. 473. The period of grace varies in different countries. In France, by the ordinance of 1673, tit. 5, art. 4, it was ten days; but by the new code, art. 135, all days of grace are abolished. In Massachusetts, a promissory note was held not entitled to grace, unless it be an express part of the contract. Jones v. Fales, 4 Mass. Rep. 245. But in 1824, by statute, the days of grace were given on all bills of exchange payable at sight, or on a future day certain, within the state, and on promissory negotiable notes, orders and drafts, payable at a future day certain, within the state, in like manner as on foreign bills, by the custom of merchants. The provision does not extend to bills, notes or drafts payable on demand. The law was re-enacted in the revised statutes of 1835. See, also, Perkins v. Franklin Bank, 21 Pick. 483. In the state of Maine, by statute of 1824, c. 272, the drawer of inland bills of exchange, and the endorser of a promissory note, as well as the acceptor and maker, are entitled to three days of grace, if the bill or note be discounted by a bank, or left there for collection. Foreign bills are governed by the usage of merchants, and the acceptor has the three days of grace without any statute provision. In Vermont, on the other hand, the days of grace were taken away, by statute, in 1833. In NewHampshire, the three days of grace are allowed to the maker of a negotiable note. Dennie v. Walker, 7 N. H. Rep. In Broddie v. Searcy, Peck's Tenn. Rep. 183, the law-merchant and the three days of grace were considered applicable to negotiable promissory notes, and applied with as much accuracy and strictness as in the most commercial states. The period of the days of grace is determined VOL. III. 9 maker has, within a reasonable time of the end of business or bank hours of the third day of grace, (being *102 the third day after the paper falls due,) *to pay. It has been said,a that the acceptor was bound to pay the bill on demand, or any part of the third day of grace, provided the demand be made within reasonable hours. Lord Kenyon thought otherwise. The question will be governed, in a degree, by the custom of the place; and if, in a commercial city, payments are made at banks, they must be made within bank hours. The maker or acceptor is entitled to the uttermost convenient time allowed by the custom of business of that kind, in the place where the bill is presented, and he is not entitled to any further time. If the third day of grace falls on Sunday, or a great holiday, as the fourth of July, or a day of public rest, the demand must be made on the day preceding.c (1) The three days of grace by the usage of the place on which the bill is drawn, and where payment is to be made. Story on Bills, 196. 388. 1 Bell's Com. 411. And it may be considered as the common law-merchant throughout the United States, in the absence of any particular or special usage to the contrary, that three days of grace are allowed on bills of exchange and promissory notes. This was so declared in Wood v. Corl, 4 Metcalf's R. 203. Buller, J., 4 Term Rep. 174. The opinion of Buller, J., has been adopted in Greely v. Thurston, 4 Greenleaf, 479. See, also, Story on Bills, pp. 261. 376, 377. Parker v. Gordon, 7 East, 385. Elford v. Teek, 1 M. & Selw, 28. Chitty on Bills, 421. b It was held, in Osborn v. Moncure, 3 Wendell, 170, that the maker bad the whole of the third day of grace to make payment, if he thinks proper to seek the holder. So, if a presentment of a bill for payment be to a private individual, and not to a bank or banker, it is sufficient to make the demand in the evening of the day of payment. Triggs v. Newnham, 10 Moore, 249. Cayuga County Bank v. Hunt, 2 Hill's R. 635. Story on Bills, 406. It is settled in Massachusetts, after a full discussion, that the maker of a promissory note is bound to pay it, upon demand made at any seasonable or reasonable hour of the last day of grace, and may be sued on that day if he fail to pay on such demand. The court, upon an examination of authorities, say, that the weight of them is in favour of this conclusion. Staples v. Franklin Bank, 1 Metcalf's R. 43. This is also the settled rule in Maine, New Hampshire and South Carolina. This is equally the case as to inland bills. Chitty on Bills, c. 9. p. 432. Ex parte Moline, 19 Vesey, 216. Burbridge v. Manners, 3 Campb. 193. • Tassel v. Lewis, 1 Lord Raym. 743. Jackson v. Richards, 2 Caines' Rep. 343. Lewis v. Burr, 2 Caines' Cas. in Error, 195. Bussard v. Levering, 6 Wheat. Rep. (1) In Hillyer v. English, in the Court of Errors of South Carolina, in 1848, it was decided that the verdict of a jury might be received and published after midnight on Saturday, and before apply equally to bills payable at sight, (1) or at a certain time; but a bill, note or check payable on demand, *or where no time of payment is expressed, is payable *103 immediately on presentment, and is not entitled to the 102. Fleming v. Fulton, 6 Howard's Miss. R. 473. Statute of Massachusetts, 1838, c. 182. Act of Louisiana, 1838, No. 52. The usage is settled in commercial matters, that if the day of payment falls on Sunday, payment is to be made on Saturday; and in Kilgour v. Miles, 6 Gill & Johnson, 268, it was held that the same rule applied to all other contracts. But the weight of authority is the other way, and in all contracts, except where the three days of grace are allowed by the custom of merchants, if the day of performance falls on Sunday, the performance may be on Monday. Avery v. Stewart, 2 Conn. Rep. 69. Salter v. Burt, 20 Wendell, 205. By statute in Vermont, 1837, if a contract falls due on Sunday, it is payable on Monday; and though a paper be not entitled to grace, and falls due on Sunday, yet if by usage of the place such a note becomes payable on the preceding Saturday, that usage prevails and governs. Osborne v. Smith, N. Y. Superior Court, December, 1836. Kilgore v. Bulkley, 14 Conn. R. 362. Though the days of grace may be shortened by the falling of the last day of grace on Sunday or other holiday, they are never protracted by the intervention of such days. Story on Bills, 393. (2) • Coleman v. Sayer, 1 Barnard's K. B. 303. Bayley on Bills, 151. Chitty on Bills, 344, 345. Dehers v. Harriot, 1 Show. 160. L'Anson v. Thomas, cited in Chitty on Bills, 345. On the other hand, though the weight of authority would seem greatly to preponderate in favour of the rule as laid down in the text, yet it may be considered as a point not entirely settled, and a different rule is laid down daylight on Sunday. The opinion of Wardlaw, J., is singularly learned and interesting. He is of the opinion, that although Sunday when mentioned in a statute, begins and ends as other civil days, yet as a common law festival and as a holiday, the common law prohibitions extend only from sunrise to sunset. This opinion is a remarkable example of historical and legal erudition. (1) In a late case in Louisiana, the question arose, and it became necessary to determine whether sight bills are entitled to grace in New-York. Upon a commission issued, several of the principal lawyers, brokers and notaries of New-York were examined, and the court decided, upon a vast preponderance of evidence, that they are not. Nimick v. Martin, Western Laro Journal, May, 1850, p. 880. U. S. Law Mag. vol. i. No. 1. Jan. 1850. In South Carolina, all bills of exchange payable at sight, are allowed days of grace. Acts of 8. C. No. 3047. 1849. In Indiana, grace is allowed equally on all sight and time bills payable in the state. Acts of Ind., ch. 17, 1849. In Delaware, grace is allowed on all notes and bills payable without time or at sight. Laws of Del., 1849, ch. 392. In North Carolina, bills of exchange, payable at sight or on a day certain, but not those payable on demand, are entitled to grace. Laws of N. C., 1849, ch. 9. In Trask v. Martin, 1 E. D. Smith's Reports, 505, it was held that a bill of exchange, payable at sight, was due on presentment. Woodruff, Justice, in a learned opinion, considers the ruleto be, that days of grace are computed when time of payment is, in the terms of the bill, given to the drawee, as after sight or after date; but that where the terms of the bill import immediate payment, days of grace are not allowed. This case is taken from the first volume of reports that has ever appeared of the decisions of the ancient and useful court of the city of New-York, the Court of Common Pleas. The interest of the volume is increased by a prefaratory history of the court, from its origin in early colonial times, written by one of its accomplished members, Mr. Justice Daly. (2) By-Laws of New-York, 1849, p. 392. The 1st of January, 4th of July, Christmas, and fast or thanksgiving days appointed by the Governor or President, are to be treated like Sunday, in relation to the protest of bills and notes. days of grace. A bill payable at so many days' sight means so many days after legal sight, or acceptance; and when the time is to be computed by days, as so many days after date, or after sight, the day of the date of the instrument is, by the modern practice, excluded from the computation.c It is equally unseasonable to demand payment before the expiration of the third day of grace, as after the day. The demand must be made on the third day of grace, (1) or on the second, if the third day be a day of public rest; and in default of such demand, the drawer of the bill and the endorser of the note are discharged. If, however, a note be made for negotiation at a bank whose custom is to demand payment, in Beawes' L. M. pl. 256, and in Kyd on Bills, 10. In France, while days of grace were allowed under the ordinance of 1673, Pothier agreed with M. Jousse, in his commentary, that a bill payable at sight had no days of grace; and he justly observed, that it would be unreasonable and inconvenient for a person who takes a draft, for his accommodation on a journey, payable at sight, to be obliged to wait the days of grace for his money. Traité du Con. de Change, art. 172. ⚫ Cammer v. Harrison, 2 M'Cord's Rep. 246. Bayley on Bills, 141. Chitty on Bills, 5th edit. 336. 345. Somerville v. Williams, 1 Stewart's Ala. Rep. 484. So if a note be payable on 1st May fixed, it means that no days of grace are intended, and there are none allowed. Durnford v. Patterson, 7 Martin's Louis. Rep. 460. b Mitchell v. De Grand, 1 Mason's Rep. 176. If a bill payable at so many, say sixty days' sight, be accepted, payable on a given day, say November 3d, in which the three days of grace were in fact included, though the day of acceptance did not appear on the bill, the demand is to be made on the day specified in the acceptance. The acceptor is bound to that day, and it being, in point of fact, the true day, the drawer and endorsers would also be bound, on protest and due notice of default of payment on that day. Kenner and others v. Their Creditors, 20 Martin's Louis. Rep. 36. 1 Miller's Louis. Rep. 280. S. C. Bayley on Bills, 155. Chitty on Bills, 406. 412. Story on Bills, 378. 391. A note payable by instalments is a good negotiable note, and the maker is entitled to the days of grace upon the falling due of each instalment. Bridge v. Sherborne, 11 Meeson & Welsby, 374. No usage or agreement, tacit or express, of the parties to a note, will accelerate the time of payment, and bind the maker to pay it at an earlier day than that fixed by law. Mechanics' Bank v. Merchants' Bank, 6 Metcalf, 13.(2) Coleman v. Sayer, Str. Rep. 829. Wiffen v. Roberts, 1 Esp. N. P. Rep. 261. Leavitt v. Simes, 3 N. H. Rep. 14. Mills v. United States Bank, 11 Wheaton, 431. A bill payable at so many days after date, must be presented by the period of its maturity. If payable on demand, or at sight, or at so many days after sight, it (1) And notice to the endorser may be given on the same day, after business hours. Coleman v. Carpenter, 9 Barr's R. 178. But an action commenced on the third day of grace, has been held premature. Wriggle v. Thomason, 18 S. & M. Rep. 452. (2) The decision of this case was governed by the provisions of the R. S. of Mass. ch. 32. Bec. 5. and to give notice on the fourth day, that custom forms a at a given time, has never been presented to the drawee for (7.) Of the steps requisite to fix the drawer and endorsers. There is no part of the learning relating to negotiable paper that has been more critically discussed, or in which the rules are laid down with more precision, than that which concerns the acts requisite to fix the responsibility of the drawer and endorsers, and the acts and omissions which will operate to discharge them. True policy consists in establishing some broad, plain rules, easy to be understood, and steady in their obligation. The holder must not only show a demand, or due diligence must be presented in a reasonable time, under the circumstances. (1) Story, J., 4 Mason, 345. Story on Bills, 373. In Grant v. Long, 12 Louis. Rep. 402, it was held, that a bill of exchange, payable ninety days after date, must be presented for payment the day it became due, or the drawer would be discharged. The court held to the rule so strictly as not even to admit any excuse, even of two days from the last day of grace, derived from the irregularities of the mail. See supra, p. 82. Renner v. Bank of Columbia, 9 Wheat. Rep. 581. Mills v. United States Bank, 11 ibid. 431. Bank of Washington v. Triplett, 1 Peters' U. S. Rep. 25. Bank of Columbia v. Fitzhugh, 1 Harr. & Gill, 239. Planters' Bank v. Markham, 5 Howard's Miss. R. 397. S. P. 6 Harr. & J. 180. 14 Mass. 303. 17 id. 452. 3 Conn. R. 489. City Bank v. Cutter, 3 Pick. Rep. 414. • Bank of Washington v. Triplett, 1 Peters' U. S. Rep. 25. (1) But if a note payable on demand provides for the payment of interest, this will be regarded as evidence that it was intended that the maker should have an extended credit, and an endorser or guarantor will be held liable accordingly. Lockwood v. Crawford, 18 Conn. R. 361. |