The opinion of the court was delivered by
Hutchinson, J.Every thing connected with the question of notice to the defendant, of tjie nonpayment of the note by the maker, being now out of the case by an express abandonment of that part of the controversy, two questions only remain for our decision. 1st. Whether the demand of payment was so made by the plaintiff as to charge the endorser ? and, 2dly. Whether the court gave the proper instructions to the jury upon the litigated point of a composition between the plaintiff and the maker of the note?
Upon the first question, the note bearing date August 25th, 1818, and made payable in four years from the date thereof, the defendant contends, that, allowing the three days of grace, the demand should have been made the 29th of August, 1822 ; whereas, it was made the 28th. In support of this computation of time he cites Cowen’s Treatise, page 106, where he says, that a note dated Sept. l#t, and payable in two months, falls due Nov. 2d. I conclude this must be a misprint, or mistake of some sort, for I find no book that supports it. Ifyd on Bills, page 5, says, “ if a bill is dated the first of January, and payable at one month after date, the month expires on the first of February.” So, on page 6tb, “ if a bill, dated the 29th, 30th,'or 31st of January, be payable one month after date, the month expires the last day of February.” The rule seems to be, to exclude the day of the date, but not exclude the same day of the succeeding month. In 17 Mass. Rep. 94, Hartford Bank vs. Barry, the note sued was dated May 20th, 1819, and payable in four months from the date, and grace. Payment was demanded, and notice of non-payment given, September 23d, in the same year. The same objection was made on trial as in this case, that the demand was made too soon. The Chief Justice overruled the objection. The question was saved, with others that arose; and, on a hearing before the Court, at bar, the counsel for the defendant abandoned this objection, saying *133tbe authorities were against him; and he referred to Kyd, 5 and 6.— Bayley, 69, and Ckitty on Bills, 74.
We recollect no decision of the Supreme Court in this state, nor is any now produced, which is an authority, either to include or exclude the days of grace. In the case of Nash vs. Harrington, reported in 2 Aiken’s Reports, this Court decided to follow the rules of the Law Merchant with regard to demand and notice. If the question of allowing the days of grace or not, in matters transacted in this state, were now urged upon us, we might feel inclined to save the question till we could ascertain the opinion of our absent brethren. But we are freed from all difficulty in two ways, 1st, The counsel, on both sides, are agreed in their arguments that the three days of grace ought to be allowed in the present case. 2dly, The maker of the note resided in the state ofNew-York, when the note became due, and the demand was made oí him there. We understand the three days of grace are there allowed as a matter of right. If so, it is correct to adopt the same rule here in a case where the demand was made in that state.
It is further urged, that this demand was made too soon, by being made in the morning of the 28th. Having already adjudged the 28th to be the true day on which the note fell due, allowing the days of grace, we have no doubt but that the demand of payment should have been made towards, the close of the day, if nothing intervened to operate as a waiver of that ceremony. It appears by the case that Clarke, the plaintiffs agent, arrived at Edinburgh, JYew-York, on the 27th of August, and found Flavel Greenleaf, the maker of the note, and demanded payment. He refused payment, saying he was poor and unable to pay the same — Clarke tarried, endeavouring to obtain security, through the day without effect — That on the next day, the 28th, early in the morning, Clarke renewed the demand of payment, and was again refused — And that Flavel accompanied Clarke seventeen miles on his way back, and then they separated. Now, it is certain that, if Clarke had not found Flavel at home, or, finding him and making demand of payment, had received no reply, or one merely evasive, he must have tarried till towards sunset, and then made a formal demand. But Flavel uses no evasion. He discloses frankly all he could ever disclose on the subject; relates his total poverty and inability to pay the note, which also now appears to have been a true relation; and having no idea of attempting any preparation to pay the note, accompanies the plaintiff’s agent nearly a half day’s ride on his homeward route. This may well be considered a waiver of any further demand. It must hayo *134been, so considered in, a suit against Flavel, if the note had been, so written as to require a special demand before an action would lie : and there is no reason why it should not be so considered where the endorser is concerned. The waiting through the day, under all these circumstances, could have been no, other than an idle, ceremony, and a useless, waste of time.
Secondly. The defendant urges that there, was testimony in this case-tending to show a contract between the plaintiff and the maker of the note, suspending th,e right of action upon the note; and this ought to discharge $e endorser; and further, that the charge of the Court upon this point was incorrect. The Court told the jury they had discovered no testimony of any such contract; that whatever testimony there was upon the point, was contained in the depositions which would be delivered them ; and, if they found evidence to convince them of that fact, it would discharge the defendant from his endorsement. The objection to this is, that the Court ought, instead of the above, to have drawn the attention of the jury to. the particular parts of the testimony, and left to them to infer that such a contract was made between the holder and the maker as suspended all right of action against the maker. The Court find no labor in deciding that such a contract, if proved, would discharge the endorser. The only dispute regards the application of the principle to the. pase. The authority cited, from the 8th of East, 576, supposed by the defendant’s counsel to be parallel with this, is a plain case within, that principle. There the holder received about half the amount of the bill from the acceptor, and received an acceptance on a new. bill, payable at a future day, for the remainder; with an agreement that the original bill should remain in his hands as security. Here we ought to bear in mind that the new hill was the evidence of his debt, and was payable at a future day, and the old one remained as, security. There was, in any event, to be a waiting till the new hill became payable. Now we will search for a parallel circumstance in the case before the Court, AH the testimony about the new, note and mortgage, whether we call them collateral security or any other name, is contained in. the several depositions of Flavel Greenleaf himself. The defendant, of course, relies, upon this to prove that the new note and mortgage had become the. debt, and the old note a mere security for. the payment, but not to be pursued till the new note was payable. The witness, instead of proving this, contradicts it in toto. The old note was for $405, with four or five years, interest. The new one was only for $400, and that included $121 98 paid out by the plaintiff for hides. The witness says the plaintiff proposed to him, several months before the giving of the new note, that, if such note *135wore given, and paid within the year, he would cancel the old note. But witness told him he could not pay so soon. He further testifies expressly that there never was any agreement whatever, that the old note was to lie without a suit even a single day ; and that he never has paid the plaintiff any thing on any account whatever. And further, that the land mortgaged will not sell for more than sufficient to clear oil the prior incumbrance, and pay for the amount of the hides. In short the witness contradicts all the defendant wishes to prove hy him. There appears nothing in the way of a suit the plaintiff might any time have brought against the maker: and, notwithstanding any thing that now appears, he must have recovered the full amount, for nothing has ever yet been realized by the plaintiff from his collateral security. The Court are of opinion that there was no testimony upon this point, that required any further instructions to the jury.
Bradley and Kellogg, for plaintiff, John Phelps, for defendant.The Judgment of the County Court is, therefore, affirmed.