Walsh v. Dart

By the Court, Cole, J. The only question in this case is, whether days of grace are allowable in New York upon a bill of exchange payable at sight. The action is by an in-dorsee against an indorser of such a bill, and it is claimed that the latter is discharged on account of the neglect to present the bill for payment at the proper time, and give notice of non-payment, so as to fix the liability of the indorser. The drawees lived in New York, and of course the law of [638] Sta^6 wou^ S'over:a as to Proper time to present a sight bill for payment. It is contended by the counsel for the respondent that by the law of New York, a bill of exchange payable at sight was due on presentment. And we have been referred to an exceedingly able and well-reasoned decision (Trask vs. Martin, 1 E. D. Smith, 505,) of the court of common pleas of New York city, where the question is distinctly decided, and it is held that days of grace are not allowable on bills payable at sight, in New York city. But the difficulty with the case at bar- is that there was no attempt to prove upon the trial, what the law of New York is upon that subject. By the statute of this state, days of grace are allowed on bills of exchange payable at sight. Sec. 5, chap. 60, R. S., 1858. We must, therefore, in the absence of all proof to the contrary, presume that the law of New York is the same as in this state, and that grace is allowable upon bills payable at sight. For we have held that we will not take judicial notice of the laws of other states, but will presume them to be in accordance with our own until the contrary appears; and that whenever any difference is relied on, it is incumbent on the party relying on it, to prove that difference for the information of the court. Rape vs. Heaton, 9 Wis., 328; 2 Phillips on Ev., Cowen, Hill and Edwards’ Ed., p. 427, and notes. Now if, by general principles of commercial law, days of grace are not allowed on sight bills in New York city, this fact should have been established by testimony on the trial. Otherwise, how can we assume that the law of that state is different from the law of this, upon the point under review ? “ In a late case in Louisiana,” cited in note 1, p. 131, 8th edition Kent’s Com., “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 were not.” Nimick vs. Martin. Some such practice should have been adopted in the present case, or some steps taken to show what the rule in New York was. As this was not done, we [639] cannot see but tbe judgment must be reversed, and a new trial awarded. , In the absence of our statute upon the question, it is not entirely clear whether it would be held that in this state a bill of exchange drawn payable at sight was due on presentment, or on the third day thereafter. There is some conflict of authority, and the point does not seem to be entirely settled by them. But still our statute removes all doubt, and it is therefore unnecessary to inquire whether it is in affirmance of the general principles of commercial law or not. The judgment of the circuit court is reversed, and a new trial ordered.