*101

bills and promissory notes, and as between the endorser and endorsee of a negotiable *note; and

the question. They held, that where a bill or note was made payable at a specified time and place, it was not a qualified acceptance, and not necessary to aver in the declaration, or prove at the trial, that a demand of payment was made at the time and place. If the maker or acceptor was ready at the time and place to pay, that was matter of defence. This may now be considered as the law on the subject throughout the United States, (sce supra, 97, and note a, and also Eldred v. Hawes, 4 Conn. R. 465. Payson v. Whitcomb, 15 Pick. 212. Waite, J., in Jackson v. Packer, 13 Conn. R. 358. Sumner

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, a:e 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 New-Hampshire 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 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 Comm. 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.

the acceptor or maker has, within a reasonable time of the end of business, or bank hours, of the third day of grace, (being the third day after the paper falls due,) *to pay. It has been said,a that the acceptor was *102 bound to pay the bill on demand, on any part of the

v. Ford, 3 Arkansas R. 389,) though Mr. Justice Story (Story on Bills, 416) thinks, that it is difficult to maintain the doctrine upon principle; and in his Commentaries on Promissory Notes, p. 274, he says, that as a judge he dissented from the opinion of the Supreme Court, in 13 Peters, 136. In Fayle v. Bird, 2 Carr. & Payne, 303, it was held, that on a bill drawn, pay. able in London, presentment must be made at some place there; but it is stated in Selby v. Eden, 11 Moore, that presentment need not be averred in the declaration. In Indiana they follow the rule, that if a promissory note be payable 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-pay. ment 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.

• Baller, 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. Teed, 1 M. &

Selwo. 28. Chitty on Bills, 421.

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 the 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 holyday, as the fourth of July, or a day of public rest, the demand must be made on the day preceding.

The

It was held in Osborn v. Moncure, 3 Wendell, 170, that the maker had 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 índividual, 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 promisso.ry 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, I Metcalf's R. 43. This is also the settled rule in Maine, NewHampshire 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. 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 con tracts. But the weight of authority is the other way, and in all contracts, except where the three days grace are allowed by the custom of merchants, if the day of performance falls on Sunday, the performance may be on Mon. day. 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

three days of grace apply equally to bills payable at sight, or at a certain time; but a bill, note or check payable on demand, *or where no time of payment *103 is expressed, is payable immediately on presentment, and is not entitled to the 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,

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 holyday, they are never protracted by the intervention of such days. Story on Bills, 393.

Colman 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 in Beawe's 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 his 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.

Mitchell v. De Grand, 1 Mason's Rep. 176. If a bill payable at so many, say sixty days' sight, be accepted, payable upon a given day, say No. tember 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.

by the modern practice, excluded from the computa

tion.a

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, 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, and to give notice on the fourth day, that custom forms a part of the law of the contract, and the parties are presumed

to agree to be governed, in that case, by the *104 usage. The *same rule applies, when a bank, by usage, treats a particular day as a holyday,

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.

b 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.

• 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 must be presented in a reasonable time under the circumstances. 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. a 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.