This case involves the construction of section 957 of the Code, and section 3 of chapter 108 of the Laws of 1853. The first provides that “ three days grace are allowed on bills of exchange, according to the custom of merchants, but not on any other instruments, and a demand at any time during the three days grace, will be sufficient, for the purpose of charging the indorser.” The third section of the act of 1852-3 is : “ Grace shall be allowed upon bills and notes, executed, or payable within this state, according to the principles of the law merchant, and notice of non-acceptance, or non-payment, or both, shall be required according to the principles of the commercial law.”
In Goodpaster v. Voris et al., ante 334, it is hold that the holder of a negotiable note, assigned during the three days of grace, would be protected against defenses by the maker, to the same extent as if assigned before that time. And the general rule of the commercial law, is- stated by Mr. Parsons thus : “ In this country, all negotiable paper payable at a time certain, is entitled to grace, which here means three days delay of payment, unless it be expressly stated, and agreed that there shall be no grace; and a presentment for payment before the last day of grace, is premature, the note not being due until then.” Parsons Mercantile Law, 106; Mitchell v. Degrand, 1 Mason, 176 ; Griffith v. Goff, 12 Johnson, 423; Miffin v. Roberts, 1 Esp. R., 262; Chitty on Bills, 402, 410, 573.
That this would be the rule in this state, since the act of 1852-3, is admitted, unless the section of the Code quoted, is still in force, as to the time of demand. The act of 1852-3 placed negotiable promissory notes, upon the same foot*396ing as to demand and notice, as bills of exchange under the Code. If it had stopped here, there would have been no difficulty, for then, notice at any time during the three days of grace, would have been sufficient to charge the indorser. Put the language of the act further is, that “ notice of nonacceptance, or non-payment, or both, shall be required according to the principles of the commercial law.” One rule, 'or principle, of this law, as we have seen, is that a presentment for payment before the last day of grace, is premature, the note not being due until then. The conclusion follows, therefore, that the act of 1852-3, adopts the rule of the commercial law, and that that of the Code, (section 951), upon this subject, is repealed. If the last act referred to notes alone, both might stand — the Code referring alone to hills of exchange. The principles of the commercial law govern, however, since the law of 1852, and apply to both notes and bills. The two laws conflict, and because of this conflict, the last must have precedence. It is as if the last law had read, “ demand and notice after the three days of grace only, according to the principles of the commercial law, will be sufficient to charge the indorser.”
Judgment affirmed.