L\ this case I concur in affirming the judgement of the Court below, solely on the ground that bills and other writings, payable at sight or on demand, are not entitled to the days of grace. In the case of Crenshaw and M‘Kier-nan, decided some years ago, when this Court sat at Ca-hawba, and which has ever since been considered by the profession as a leading case, it was settled that an endorsed promissory note was entitled to three days of grace, and that payment must be demanded on the last day; but in the opinion then delivered, it is expressly said that no grace was to be allowed to bills payable at sight or on demand; and if this be the law, there is certainly a stronger reason why the days of grace should not be allowed to writings obligatory, and notes under seal, payable at sight or on demand. In the case now before the Court, no time of payment is expressed in the instrument on which the action is brought; it is therefore due and payable presently, viz, at sight or on demand, and consequently not entitled to the days of grace. As to the days of grace, I make no distinction between common promissory notes and writings obligatory, or notes under seal, for, after assignment, the statute places them all on the same footing, and before assignment, none of them are entitled to the days of grace.
This opinion does not conflict with any of the principles settled in the adjudication above referred to, nor am I inclined to dispense with any former decision of this Court, unless on mature reflection I am satisfied that it *488was wrong. I am not prepared to disturb the .principles of decision settled in the case of Crenshaw and MfKeir-' nan.
By JUDGE TAYLOR.Because it is insisted that the affirmance ofthejudge-tnent in this case overrules a former decision of this Court, and I believe it has no such effect, I deem it necessary succinctly to give the leasons which hate brought me to this conclusion.
It was decided by this Court in the case of Crenshaw and M‘Kiernan, that to aver a demand of payment of a promissory note, made payable at a given time after its date, on the third day after it matured, was not error. That decision, it is contended, settles this case. It is unnecessary to investigate the question on which many lawyers and some judges have maintained different opinions ; that is, whether by the law merchant anterior to the statute of Ann, promissory notes were mercantile instruments, and whether that statute did more than enact that which was law before. The majority of decisions seem to have yielded the point that promissory notes were not previous to the enactment-of that statute, mercantile or negotiable instruments. This being the case, promissory notes and bonds, at common law, so far as their negotiability was concerned, stood on the same foot, and our statute makes no difference between them. It is therefore admitted that the decision of Crenshaw and MYCiernan must be applied to bonds in extenso; and after a practice has grown up under that decision, no matter what my private opinion may be as to its correctness, I would do nothing to shake it. It is true, were this res integra, I should decide differently from the opinion of the Court in that case. I should determine that bonds and notes had nothing to do with days of grace. It seems to me to be indeed a novel doctrine that an instrument is to be due at one time as to a payor or obligor, and at another as to the endorser and endorsee ; that a holder of a paper may sue the person who executed that paper, yet while such suit is legally pending, it is not due as to other parties to it, even from the person who is sued.
Under the statute of Ann, a promissory note is placed on the foot of inland bills of exchange, and of course is not due until the third day of grace even to the payee. *489The endorsement gives it no new quality in this respect. The payee cannot sue the payor until the days of grace have elapsed; the law makes this as imperative as any agreement of the parties expressed in the body of the instrument could do; and of course when the paper fails in the hands of an endorsee, he cannot demand payment so as to charge the endorser until it is due, that is, the third day of grace. But by our law, bonds and notes are due at the time they mature, according to their term between the original parties, and certainly the provision of the statute authorizing the assignee to prosecute an action on such an instrument in his own name “in the same way as on inland bills of exchange.” has simply the effect of enabling him to sue the maker when the money is due, of demanding the money when it is due, of giving notice to the assignor of the failure of the maker to pay when the money is due, &c.
But admitting that notes and bonds, after they are endorsed, are put in all respects, even as to days of grace, on a foot with inland bills of exchange; still the judgement below in this case must be affirmed. In Chitty on Bills a it is said, “no days of grace are allowed on bills, notes or checks payable on demand, or -where no day of payment is expressed
It is a well established rule, that if no time of payment be expressed in anote, &c. it is payable immediately, and may, like one on demand, be sued on immediately without a demand. Then it was right to consider the two kinds, those payable on demand, and those in which no time of payment is expressed, as belonging to the same class. The instrument on the assignment of which this action is brought, has no time of payment expressed in it; therefore,, if the author above cited be right, it was payable presently, and it was not a subject for days of grace, nor would have been even if it were an inland bill of exchange.
I therefore coincide in the opinion delivered by my brother Suffold, and believe that this decision does not shake that of Crenshaw and iVTKicrnan; the note in that case being payable at a time specific !, after its d;.te-
j udgement affirmed.
Judge White not sitting.Pa¡i'e34S"