Norton v. Lewis

Swift, Ch. J. When the statute made promissory notes assignable according to the custom of merchants, it communicated to them all the properties of negotiable instruments. As these arc entitled to days of grace, it follows, of course, [480] tliat notes made assignable by statute, must be entitled ten days of grace. The declaration, in this case, is drawn in the same manner as if the -note ..was not entitled todays of grace ; and-, it appears, from'the facts found by the special verdict, that the plaintiff relies upon a waiver of the demand and notice. The defendant insists, that the plaintiff cannot recover, because he has not alleged demand and notice, on the days when they ought to have been made and given : and that there lias been no waiver, but a new promise, if any tiling, on which the action ought to have been brought.; so that the verdict does not prove and support the declaration. In all cases where a party relies on a waiver of demand and notice, he may allege the demand and notice in the same manner as he would have- done, if actually given ; and proof of the waiver is equivalent to the proof of demand and notice. The precise day is not material to he alleged in the declaration, wfaeirdemand is made, or notice given. It is sufficient for the plaintiff to prove demand and notice on the proper day. The agreement found in the special verdict, is a waiver of demand and notice. y. It did not extinguish the liability created by the indorsement, or constitute a new ground of action. I am of opinion, that the plaintiff is entitled to recover. IIosmeR, J. I have no doubt that days of grace must he allowed on a negotiable, promissory note. It is unquestionable, that they are allowed on bills of exchange, both foreign and inland. By ourlafte statute,(a) all promissory notes, to the amount of thirty-five dollars, or more, for the payment of money only, and made payable to order or bearer, are made assignable and negotiable, according to Use custom of merchants, and the laws relating to inland bills of exchange. The English statute of the 3d and 4th oí Jinn. c. 9. on the same subject, though it has not identically the same expressions, yet they arc of equivalent force. Under ibis law, promissory notes are held entitled to days of grace. Brown v. Harraden, 4 Term Rep. 148. A promissory note, negotiated by indorsement, is an inland bill of exchange j ami no. reason can be assigned for making any difference between them. [481] Notes indorsed at any of the banks, have always been considered as entitled to days of grace, by reason of an expression in their charters, precisely like the one in the act concerning promissory notes. As to the promise made by the defendant, I am of opinion, it was a Waiver of strict demand and notice. It falls within the reason of many cases which have been determined. It was not necessary that the plaintiff should have founded his salt on the verbal promise, or even make mention of it in his declaration. The gist of his action is the same as if no promise had been made; and the mode in which he has declared, relying on proof of an excuse for his omission to make demand or give notice, has too frequently been sanctioned, to remain questionable. The plaintiff, in my opinion, is entitled to judgment. The other Judges were of the same opinion. Judgment to be entered for the plaintiff. Footnotes [(a)] October Session, 1811. e. 7-