drew up the opinion of the Court. This note, having been made in 1824, was not entitled to grace,1 the statute allowing grace ón promissory notes not having passed until 1825. (See Revised Stat. c. 33, § 5.) It became due, therefore, on the 13th of November, 1825, and should have been demanded on the 12th, as the day of payment according to the note was Sunday.2 As however the holder *82might wait for payment to be made through the day, and the promisor lived twenty miles distant, a demand on Monday the 14th might in this case have been seasonable.1 The fact that Monday was a very rainy day, can form no excuse. If it nod appeared that a violent tempest had so broken up or destroyed the roads, or obstructed them, that they were impassable, perhaps it might have been considered a providential interception, on account of which the plaintiff would not have been charged with negligence. No such fact appearing, there was loches which will prevent the plaintiff from recovering, unless the defendant has waived exception to it.
It appears that on Saturday the plaintiff asked the defendant, if it were not best for him to call on the makers, and he replied “ that it would be of no use.” Both the makers were at this time wholly without property, and one of them had absconded. The defendant had before taken all the security which he could get, though it turned out worthless. But knowing the condition of the makers, and‘telling the plaintiff it would be useless to call on them, was an implied assent on his part that a demand need not be made. 2 The letter written by him on the 14th to one of the makers, and sent by the plaintiff on the 15th, affords a strong implication that he bad waived any advantage from any previous loches. At any rate, we think from these facts the jury might legally have inferred, that the defendant was content with the demand to be made on the 15th.
According to the agreement of the parties, therefore, the judgment is to be on the verdict for the plaintiff.
See Jones v. Fates, & Mass. R. 251.
See Bayley on Bills, (2d Am. ed.) 236.
See Haddock v. Murray, 1. N. Hampsh. R. 140; Bank of Norik America v M‘Knight, 2 Dallas, 233; Gurly v. Gettysburg Bank, 7 Serg. & Rawle, 324; Freeman v. Boynton, 7 Mass. R. 483. But see Bayley on Bills, (2d Am ed.) 231, 232, and notes; Johnson v. Haight, 13 Johns. R. 470; Brown v Lush, 4 Yerger, 210.
See Bayley on Bills, (2d Am. ed.) 244, 245.