The opinion of the court was delivered by
Pierpoint, Ch. J.Th.e note upon which this action is based, is dated the 24th day of December, 1867, and pajwible one year from date. This action was commenced on the 24th day of December, 1874 ; and the only question is, whether the action is barred by the Statute of Limitations ; and that depends upon the question whether the plaintiff’s cause of action accrued upon the day the note fell due, or only at its close. The note is not made payable at a bank, or at any particular place ; it is not indorsed, nor was it negotiated, and by our law the maker was not entitled to grace. These facts divest this case of those questions growing out of the necessity of making demand, protest, notice, <fcc., for the purpose of charging indorsees, &c., in the determination of which, the course of business in the mercantile and banking community forms an important element, which questions have led to much discussion that has resulted in many and conflicting decisions. The authorities a.ll agree, -that in computing the time that a note payable at a future day has to run, the day of the date is excluded. The rule is also well settled, that when by the terms of a contract, it is to be performed by a party upon a particular day, such party has the entire day in which to perform it. But it *204is said that an exception to this rule prevails in respect to negotiable paper ; and in many cases outside of this state, it has been held that upon a demand being made during the ordinary and regular business hours, and a refusal or neglect to pay, the right of action then accrues, and a suit brought thereafter upon the same day, may be maintained. But we know of no case where it has been held that such action could be maintained without such demand and refusal; on the other hand, such demand and refusal seem to be regarded as indispensable.
In this case there is nothing to show that there was such a demand and refusal, even if in a case like the present that would have been sufficient. On that we express no opinion.
It is claimed that in this case the court should presume a demand and refusal from the lapse of time. This we cannot do. No demand was necessary to perfect the party’s right of action at the close of the day of payment; and to presume that the party made a demand with a view of perfecting his right a few hours earlier, from the fact that he neglected to enforce his right when it whs perfected, for almost six years, would be going quite too far in aid of this defence. The fair inference would be the other way. Upon the view we take of this case, the plaintiff’s right of action accrued at the close of the 24th day of December, 1868, and that right would be barred by the Statute of Limitations at the close of the 24th day of December, 1874. As this action was commenced before the close of that day, it is not barred by the statute, and the plaintiff is entitled to recover.
Judgment affirmed.