Assumpsit against the defendant, as indorse» of a promissory note, made, indorsed and negotiated in the State of Ohio.
The first ground of defence is, that this note was once put in suit in the State of Ohio, and that judgment was recovered in that action. It is true that judgment was recovered by the plaintiffs, but not on this note. It appears by the record, that the suit was commenced on this and one other note ; that it was referred to the court to decide without the intervention of a jury; that the court expressed an opinion in favor of the plaintiffs on both notes ; but that on motion the plaintiff was allowed to withdraw the note now in suit here, and that judgment was in fact taken for the amount of the other note only. This was equivalent to a discontinuance, by leave of court, as to this note, and such discontinuance is clearly no bar to another suit for the same cause of action.
Another ground of defence was, that it does not appear that by the law of Ohio three days of grace are allowed, and therefore it is not shown that demand on the third day was right. But we consider it well settled, that by the general law merchant, which is part of the common law, as prevailing throughout the United States, in the absence of all proof of particular contract or special custom, three days of grace are allowed on bills of exchange and promissory notes; and when it is relied upon that by special custom no grace is allowed, or any other term of grace than three days, it is an exception to the general rule, and the proof lies on the party taking it. Bussard v. Levering and Lindenberger v. Beall, 6 Wheat. 102, 104. Renner v. Bank of Columbia, 9 Wheat. 581. Mills v. U. S. Bank, 11 Wheat. 431.*
*206It was further contended that due notice was not given to the defendant, by a letter addressed to him at Buffalo, without proof that he lived there, or proof of due diligence to ascertain his residence. The note was dated at Buffalo ; the testimony of the notary shows that it was reported that the defendant lived there ; and we are of opinion that the holders used due diligence, and that, under the circumstances, notice sent to Buffalo was sufficient. [See Lowery v. Scott, 24 Wend. 358. Bank of Utica v. Davidson, 5 Wend. 587. Bank of Utica v. Bender, 21 Wend. 643. Ransom v. Mack, 2 Hill’s (N. Y.) Rep. 587.]
We are also of opinion that the instruction to the jury was right, as to the damages to which the plaintiff was entitled for non-payment of the note.
Judgment on the verdict.
It appears in the Ohio Reports, that three days’ grace is allowed by law, in that State, on promissory notes and bills of exchange. Remington v. Harrington, 8 Ham. 507. M'Murchey v. Robinson, Wilcox, 496.