Osborn v. Moncure
3 Wend. 170
N.Y. Sup. Ct.
1829
Check Treatment

By the Court,

Sutherland, J.

The only question in this case is, whether the suit was prematurely commenced. It is admitted that the writ was served before three o’clock P. M. of the the third day of grace, payment having previously been regularly demanded and refused; the defendants having failed some days before. It is not denied that the maker is entitled to the days of grace. (2 Cowen, 766. 8 Cowen, 265, and the cases there cited. Chitty on Bills, 420, 1.)

Notice to the endorser on the third day of grace, after a demand upon the maker and his default of payment, is good although it need not be given until the following day. It being earlier than is required, cannot form any objection on the part of the endorser. (1 Johns. C. 328. Chitty on Bills, 365. 3 Campb. 193.) The demand upon the maker should be made on the third day of grace, and within a reasonable time before the expiration of the day, (2 Caines, 244 ; 12 Johns. R. 424;) and if he then refuses payment, the holder has done all that is incumbent upon him to do, and may treat it as a dishonored bill, so far as immediately to give notice to the endorser ; but still I apprehend the maker has the whole of the day to pay in, if he thinks proper to seek the holder. It is undoubtedly true in relation to other contracts, that the party has until the last instant of the day to make payment; and I perceive no reason for making negotiable paper an exception to the general rule, (3 Bos. & Pul. 602. 4 T.R. 170. Chitty on Bills, *172365, notes.) Mr. Chitty seems to think the rule is differently settled.

The cases of Crygier v. Long, (1 Johns Cas. 393,) and Lawrence v. Bowne, (2 Johns. 225,) seem to decide, that after appearance and pleading in chief, a defendant cannot object, the suit being upon a note, that it was commenced before the note was due ; and it is there said that he should apply to the court to be discharged from the arrest. But, upon general principles, I do not see how a defendant can be deprived of the benefit of such a defence upon the trial. The plaintiff, under the plea of non-assumpsit, is bound to shew a good cause of action at the time of the commencement of the suit, and the defendant may give in evidence any thing which shews that the plaintiff had not such cause of action at that time. (1 Phil. Ev. 131.) It is well settled that the issuing of the capias is the commencement of the suit, and the plaintiff’s cause of action must exist at that time. (3 Johns. Cas. 149. 1 Caines, 69, 72. 3 id. 133. 2 Johns. R. 346. 3 id. 42. 10 id. 119, and 8 Cowen, 205, where the cases are collected.) Mr. Chitty, (1 Chitty’s Pl. 443,) says, that where a suit is prematurely brought, it is ground of demurrer or nonsuit. This appears to me to 'be the true rule. I am therefore of opinion that the judge ought to have nonsuited the plaintiff.

New trial granted.