Bevan v. Eldridge

The opinion of the court was delivered by

The affidavit of defence presents the single question, whether an action can be commenced against the endorser of a promissory note on the last day of grace?

This question was ruled affirmatively by the Supreme Court of *355Massachusetts in Shed v. Brett, 1 Pick. 401, but it was held by the Supreme Court of New York, that under similar circumstances, an action against the maker of a promissory note was 'prematurely brought, Osborn v. Moncare, 3 Wend. 170. In the former case, the action was instituted before the endorser, by the course of the mail, could have received the notice of protest, a position in direct conflict with the decision of the Supreme Court of our own state in Smith v. Bank of Washington, 5 S. & R. 318.

The ground of the New York decision is stated to be, that the maker has the whole of the day to make payment, and this is in accordance with Wilkins v. Jadis, 2 B. & Ad. 188, in which it was determined that a presentment of a bill of. exchange for payment at a house (not a banker’s) at which it was made payable, at eight o’clock in the evening of the last day of grace, was sufficient to charge the drawer, although at this hour the house was shut up, and no person there to pay the bill.

It was said in the N. Y. Fireman’s Company v. Ely, 2 Cowen 680, that for all practical purposes the days of grace are part of a promissory note, and accordingly where interest was taken in advance, on discounting a note, to the end of the last day of grace, it was decided to be lawful. Bank of Utica v. Wagner, 2 Cowen 712. The practice of including interest in this way, is generally, if not universally, adopted by the Banks in Pennsylvania.

If then interest can be charged in advance to the end of the last day of grace, there can be no propriety in treating any party to a note as in default, in respect to payment, until that day has expired. The rule for judgment must, therefore, be discharged.

Rule discharged.