1 Johns. Cas. 99 | N.Y. Sup. Ct. | 1799
In general, the period of a month is construed to mean a lunar month, unless it is otherwise expressed;
On the second point, we are of opinion that the pending negotiation between the parties superseded the necessity of a demand of payment and of notice. The defendant was fully apprised of his situation before, and at the time the note fell due. One of the makers was absent Trom the state, and the other had absconded. iA formal dem'and and notice under such circumstances, could answer no valuable purpose. The defendant, sensible of this, by his own acts admitted his responsibility, .treated the note as his own, and negotiated for a further time of payment. By this conduct he waived the necessity of any demand or notice.
Judgment for the plaintiffs.
haring v. Hailing, 15 Johns. R 119. Parsons v. Chamberlain, 4 Wend. 512. 2 Black. Comm. 141. Lacon v. Hooper, 6 T. R. 225. Castle v. Burditt, 3 id. 623. Rex v. Adderley, Doug. 464; 1 Bing. 307. Ellis’ case, 3 Halstead, 232. Catesby’s case, 6 Co. 61. In the matter of Sainford & Horn, 6 Maule & Selw. 226. As to lunar and calendar months, and how they are calculated ; Lang v. Gale, 1 Maule & Selw. 111. Watson v. Pears, 2 Campb. 294. Cathcart v. Hardy, 2 Maule & Selw. 536. And see as to time in general, note to 2 Chit. Bl. 141. 2 Hill, N. Y. R. 376, n. (6). Where calendar time was intended by a statute ; The People v. The Mayor of New York, 10 Wend. 393. Snyder v. Warren, 2 Cowen, 518. In Massachusetts, a month mentioned generally in a statute, or contract, will be considered a
McMurchey v. Robinson, 10 Ohio R. 496. Cockell v. Gray, 3 Brod. & Bing. 187. Lang v. Gale, 1 Maule & Selw. 111. Chitty on Bills, 268, (7th ed.) Bayley on Bills, 247,250. Story on Bills, § 143,330.
If by prior arrangement between the parties to a bill or note, the necessity of notice has been expressly or impliedly dispensed with, as between these parties, no notice need be given, and the want of it is entirely excused. Story on Bills, § 317; for here the maxim strictly applies, Quilibet potest renunciare juri pro se introducto. 2 Inst. 183. Wingate Max. ■ 483. Andrews v. Boyd, 3 Metcalf, 434. The same doctrine is recognized in the French law, Pardessus, Droit, Comm. tom. 2, art. 425,436. Thus, where the endorser of a promissory note, shortly before it became payable, agreed with the holder, in consideration of,time being given, that he would pay the note, it Was held that this was equivalent to proof of demand and notice, and satisfied the usual averments of demand and notice in the declaration, Norton v. Lewis, 2 Conn. R. 473. So where an endorser promised a bank to attend to the renewal of the note, and to take care of it, and directed the usual notice to the makers to be sent to himself, Taunton Bank v. Richardson, 5 Pick, 436. So where a noté was payable after, ten days’
In addition to the other circumstances mentioned by the court, in the principal case, the defendant admitted that he was “ secured or indemnified for his responsibility.” This, in itself, constitutes an answer to the want of demand and notice. Bond v. Farnham, 5 Mass. R. 170. See also Corney v. Da Costa, 1 Esp. 303. Whitfield v. Savage, 2 Bos. & Pul 277. Mead v. Smith, 2 Greenleaf, 207. Martel v. Tureaud, 18 Martin, 117. Rogers v. Stephens, 2 T. R. 713.