The opinion of the Court was delivered by

The first error is, that the note upon which the plaintiff below claims to recover in this action, had not become payable according to its tenor at the date of the impetration of the writ commencing the action. By an inspection of the record, the date certainly appears to be so, and therefore forms an insuperable objection to the plaintiff’s recovery. The note is dated on the 30th December 1840, payable according to its terms 12 months after its date; and the writ was sued out on the 1st day of January 1842. Though, in general, when a,deed mentions a month, it ia construed to mean a lunar month, or 28 days, yet in bills of exchange,'notes and other mercantile contracts, the rule is otherwise; and by the custom of trade, when a bill or note is made payable at a month or months after date, the computation must in all cases be by calendar and not by lunar months. 1 Strange 652: Lang v. Gale, (1 Maule & Selw. 111); see also 2 Chit. Black. 140 and note (3). And again, in the case of a bond made payable a year after its date, if not paid on the last day of the year, a suit for the recovery of its amount may be commenced the next day: but in respect to bills and notes it is otherwise; there three days of grace are allowed to the acceptor or drawer before he can be sued. Bank of North America v. Pettit, (4 Dall. 127); Fisher v Evans, (5 Binn. 541). Originally they were called days of grace, because they were gratuitous, depending altogether on the will of the holder, and could not be claimed as a right by the person bound to pay; and although they still retain the name of grace, yet the custom of merchants recognised by law has long reduced them to certainty, and given the acceptor or maker a title to claim them as a matter of right. Chitt. on Bills 374. Allowing then the three days of grace to the defendant below, it is clear that the plaintiff there had no right to bring his action before the 3d of January, that is, not until after the three days of grace had fully expired. And accordingly the Supreme Court of New York held that an action brought against the maker of a promissory note on the third day of grace was prematurely brought, and that advantage might be taken of the error on the trial by nonsuiting the plaintiff. Osborn v. Moncure, (3 Wend. 170). Had this objection *183been brought to the notice of the court below, it is not likely that they would have rendered a judgment for the plaintiff, or haye held that the defendant was bound to file an affidavit of defence in such cases. For it would be preposterous to hold that the defendant was bound or could be required under the Act of Assembly or Act of the court, to file an affidavit of defence, when it «appeared from the plaintiff’s own showing that he had no cause of action against the defendant at the time of commencing his suit.

The second error relates to sufficiency set out by the defendant below in his affidavit of defence to a part of the plaintiff’s claim, which was that he claimed to defalcate $15.46 from the plaintiff’s claim, that had been paid and allowed by him to the plaintiff as an excess of legal interest upon prior loans of monies made by the latter to the former. That money obtained by oppression and by taking advantage of the distresses of others, in violation of laws made for ,their protection, may be recovered back in an action for money had and received, seems to be well settled; because in such case the parties are not in pari delicto. Lowry v. Bourdieu, per Lord Mansfield, (Doug. 472); Jones v. Barkley, (Ib. 697, note); Mathers v. Pearson, (13 Serg. & Rawle 258). And according to this principle it has been held that such action will lie to recover back the excess of interest taken from the plaintiff on an usurious loan to him. Smith v. Bromley, (Doug. 697, notes a and b); Astley v. Reynolds, (Strange 915); Williams v. Hedley, (8 East 378); Rep. Temp. Talb. 40, note; Lofft 345; Browning v. Morris, (Cowp. 792). Seeing then that the defendant below might have maintained an action against the plaintiff for money had and received to recover back the $15.46, excess of interest alleged to have been taken by the plaintiff below from the defendant, it cannot be questioned that under our Defalcation Act the latter may and has the right, if he chooses, to defalcate that sum from the plaintiff’s demand. We therefore think that the court below erred in rendering a judgment against the defendant for the whole amount of the plaintiff’s claim. Had not the plaintiff brought his action prematurely, and been willing to have accepted a judgment for the residue of his claim, after deducting the $15.46, the court might have rendered judgment for such residue in favour of the plaintiff against the defendant, but not otherwise.

Judgment reversed.