Johnson v. Haight

13 Johns. 470 | N.Y. Sup. Ct. | 1816

Spencer, J.,

delivered the opinion Of the court."

The first-point maffe by the defendants cannot be maintained; it has been decided in this court, that a notice to produce a paper might be proved by parol. (3 Caines, 174. Turner v. Wilson.) It was held, in Peytonv v. Hallet, (1 Caines, 364.,) that an abandonment in writing might be proved by parol. Another ground, equally decisive, is, that the copy of a notice retained by a witness is to be regarded as a duplicate original, and sueh duplicate is good evidence, without notice to produce the other, (Philips on Evidence, 342.)

On the second point, the defendants are entitled to judgment. The third day of grace fell on the 29 th day of November, and payment was not demanded of the maker until the 30th. The law-is perfectly settled, that a note must be demanded on the third day of grace, unless that falls on Sunday, and then it must be demanded on the second day of grace. (2 Caines, 343. 16 East, 250.) Here there is no excuse for delaying the demand on the maker, and there is a palpable want of due diligence, which discharges the endorser.

Judgment for the defendant.